HUGO GROTIUS,
The Rights of War and Peace (1738 trans.)

[xi]

H. GROTIUS
to
His Most Christian Majesty
LEWIS XIII.
King of France and Navarre.

This Book presumes, most illustrious Prince, to in title it self to Your great Name, from a Confidence, not of itself, or its Author, but of the Subject Matter of it, which is Justice; a Virtue in so distinguishing a Manner Yours, that by it, both from Your own Merits, and the general Consent of Mankind, You have acquired a Title worthy so great a King, and are now every where known by the Name of JUST, no less than that of LEWIS. It was the Height of Glory to the Roman Generals, to be sirnamed from some of their conquered Countries, as Crete, Numidia, Africa, Asia, and the like. But how much more glorious Your Sirname, by which you are declared the irreconcileable Enemy, and perpetual Conqueror, not of any Nation or Man, but of Injustice? It was esteemed a great thing among the Egyptian Kings, for one of them to be stiled, the Lover of his Father, another the Lover of his Mother, another of his Brother. But how far short these of Your Name, which comprehends not only those, but every thing else that can be conceived beautiful and virtuous? You are JUST, as you honour the Memory of the great King your Father by imitating him: JUST, as You instruct your Brother by all imaginable Methods, but none more than that of Your own Example: JUST, as You procure the greatest Matches for Your Sisters: JUST, as You revive the Laws almost dead, and, to the utmost of Your Power, oppose the growing Wickedness of the Age: JUST, but at the same time Merciful too, as You deprive Your Subjects, whom the Ignorance of Your Goodness had caused to transgress the Bounds of their Duty, of nothing but the Liberty of offending, nor use any Violence to those who differ from You in Matters of Religion: JUST, and at the same time Compassionate, as you relieve by Your Authority oppressed Nations, and distressed Princes, and controul the exorbitant Power of Fortune. Which singular Beneficence in You, as near the Divine as Human Nature can admit, obliges me even in this publick Address to return You my private Thanks. For as the coelestial Bodies not only influence the great Parts of the World, but also suffer their Virtues [xii] to be communicated even to every individual Animal; so you, like a Star of most benign Influence to the Earth, not contented to have raised up dejected Princes, or given Succour to Nations, have condescended to give Protection and Comfort to me also, when illtreated by my Native Country. To Your publick Actions You have, to compleat the Measure of Justice, added such Innocence and Sanctity of Life, as deserves the Admiration, not of Men only, but of the blessed above. For who of the meanest People, or even of those who have sequestred themselves from the Conversation of the World, attains to that Perfection of Purity and Virtue, as you whom the Splendor of Fortune exposes daily to innumerable Charms of Vice? But how great is it to attain that in a multiplicity of Business, in a Crowd, in a Court amongst so many so various Examples of Vice, which others scarce are able, often are not able to do in Solitude? This is to merit the Name not of JUST only, but of Saint also, and that in this Life, which the Piety of the Age attributed to your Ancestors Charles the Great, and Lewis, only after their Deaths: This is to deserve the Title of most Christian, not by Descent, but your own proper Right. But as there is no part of Justice which does not belong to You, so that which concerns the Subject of this Book, viz. the Affairs of Peace and War, is properly Yours, as you are a King, and especially as King of France. Vast is Your Dominion, which extends from Sea to Sea, and comprehends so many spacious and happy Provinces; but it is a greater Dominion than this, not to desire others Dominions. Worthy is this of Your Piety, worthy of Your high Pitch of Grandeur, not to attempt the Invasion of any Man’s Right by Force of Arms, or the Alteration of ancient Limits; but together with War, to carry on Negotiations of Peace; nor to begin it, but with a Desire of bringing it to a speedy Conclusion. When it shall please God to call You to his Kingdom, which alone is better than that which You now possess, how becoming, how glorious, how joyful to the Conscience will it be for You to be able to say with Boldness; This Sword, received from thee for the Safeguard of Justice, I restore again pure, innocent, stained with no Man’s Blood rashly shed? Thus it shall be, that the Rules which we now seek for in Books, shall hereafter be learned from Your Actions, as the most perfect Pattern. Which thing itself, though of great Importance, yet the Christian World presumes to require something still greater from you; that is, that Wars every where ceasing, Peace may be restored, not only to Civil States, but to the Churches; and our Age submit itself to be modelled after the Pattern of the Apostolical Age, in which all unanimously acknowledge the Christian Faith to have been true and uncorrupted.

The Minds of Men, now grown weary of Dissention, are encouraged to hope for this, as the Effect of the Friendship lately contracted, and by the happy Marriage of Your Sister confirmed, between You and the King of Great Britain, a Prince eminent for his great Wisdom and ardent Love for the Peace of the Church. A Work indeed of vast Difficulty, by reason of the growing Animosity of Parties: But of two such great Kings nothing is Worthy but what is Difficult, and to all others impracticable. The God of Peace and Justice grant to Your Majesty, most Just and Peaceable Prince, together with all other Happiness, the Honour of accomplishing this great Work. MDCXXV.

CHAPTER I↩

What War is, and what Right is.

I. The Order of the Treatise.I. All [1] the Differences of those who do not acknowledge one common Civil Right, whereby they may and ought to be decided; such as are a multitude of People [2] that form no Community, or those that are Members of different Nations, whether [3] private Persons, or Kings, or other Powers invested with an Authority equal to that of Kings, as the Nobles of a State, or the Body of the People, in Republican Governments: All such Differences, I say, relate either to the Affairs of War, or Peace. But because War is undertaken for the Sake of Peace, and there is no Controversy from whence War may not arise, all such Quarrels, as commonly happen, will properly be treated under the Head of the Right of War; and then War itself will lead us to Peace, as to its End and Purpose.

II. The Definition of War, and the Original of the Word (bellum).II. 1. Being then to treat of the Right of War, we must consider what that War is which we are to treat of, and what the Right is which we search for. Cicero [4] defines War a Dispute by force. But Custom has so prevailed, that [5] not the [2] Act of Hostility, but the State and Situation of the contending Parties, now goes by that Name; so that War is the State or Situation of those (considered [6] in that Respect) who dispute by Force of Arms. Which general Acceptation of the Word comprehends all the kinds of War of which we shall hereafter treat, not even excluding single Combats, which being really ancienter than Publick Wars, and undoubtedly of the same Nature, may therefore well have one and the same Name. This agrees very well with the Etymology of the Word; for the Latin Word Bellum (War) comes from the old Word Duellum (a Duel) as Bonus from Duonus, and Bis from Duis. Now Duellum was derived from Duo, and thereby implied a Difference between two Persons, in the same Sense as we term Peace Unity (from Unitas) for a contrary Reason. So the [7] Greek Word Πόλεμος, commonly used to signify War, expresses in its Original an Idea of Multitude. The ancient Greeks likewise called it Λύη, which imports a Disunion of Minds; just as by the Term Δύη, they meant the Dissolution of the Parts of the Body.

2. Neither [8] does the Use of the Word (War) contradict this larger Acceptation. For tho’ sometimes we only apply it to signify a Publick Quarrel, this is no Objection at all, since ’tis certain, that the more eminent [9] Species does often peculiarly assume the Name of its Genus. We do not include Justice in the Definition of War, because it is the Design of this Treatise to examine, whether any War be just, and what War may be so called. But we must distinguish that which is in Question, from that concerning which the Question is proposed.

III. Right, as it is attributed to Action, described, and divided into that of Governors and governed, and that of Equals.III. 1. Since we intitle this Treatise Of the Rights of War, we design first to enquire (as I said before) whether any War be just; and then what is just in that War? For Right in this Place signifies meerly that which is just, and that too rather in a negative than a positive Sense. So that the Right of War is properly that which may be done without Injustice with Regard toan Enemy. Now that is unjust which is repugnant to the Nature of a Society of reasonable Creatures. So Cicero says, it is unnatural to take from another to enrich one’s self; which he proves thus, because, [10] if every one were to do so, all Human Society and Intercourse must necessarily be dis- [3] solved. Florentinus [11] declares, that it is a villainous Act for one Man to lay an Ambush for another, because Nature has founded a kind of Relation between us. And Seneca [12] observes, As all the Members of the Human Body agree among themselves, because on the Preservation of each depends the Welfare of the Whole, so should Men favour one another, since they are born for Society, which [13] cannot subsist but by a mutual Love and Defence of the Parts.

2. But as in Societies, some are equal, as those of Brothers, Citizens, Friends and Allies. And others unequal, καθ’ πεοχν, [14] by Preeminence as Aristotle terms it; as that of Parents and Children, Masters and Servants, King and Subject, [15] God and Man: So that which is just takes Place either among Equals, or amongst People where of some are Governors and others governed, considered [16] as such. The latter, in my Opinion, may be called the [a] Right of Superiority, and the former the [b] Right of Equality.

IV. Right taken for Quality divided into Faculty, and Aptitude or Fitness.IV. There is another Signification of the Word Right different from this, but yet arising from it, which relates directly to the Person: In which Sense Right is [17] a moral Quality annexed to the Person, enabling him to have, or do, something justly. I say, annexed to the Person, tho’ this Quality sometimes follows the things, as [18] Services of Lands, which are called real Rights, in Opposition to Rights, [19] meerly personal, not because the first are not annexed to the Person, as well as the last, but because they are annexed only to him [20] who possesses such or such a Thing. This moral Quality when [21] perfect, is called by us a Faculty; when imperfect, an Aptitude: The former answers to the Act, and the latter to the Power, when we speak of natural Things.

V. Faculty strictly taken divided into Power, Property, and Credit.V. Civilians call a Faculty that Right which a Man has to his [22] ] own; but we shall hereafter call it a Right properly, and strictly taken. Under which are contained, [4] 1. A Power either over our selves, which is term’d [23] Liberty; or over others, such as that of a Father over his Children, or a Lord over his Slave. 2. [24] Property, which is either compleat, [25] or imperfect. The last obtains in the Case [26] of Farms, for Instance, or Pledges. 3. The Faculty of demanding what is due, and to this [27] answers the Obligation of rendering what is owing.

VI. Another Division of Faculty into private and eminent.VI. Right strictly taken is again of two Sorts, either private and inferior, [28] which tends to the particular Advantage of each Individual: Or eminent and superior, such as a Community has over the Persons and Estates of all its Members for the common Benefit, and therefore it [29] excells the former. Thus a regal Power is above [30] that of a Father and Master; a King has a [31] greater Right in the Goods of his Subjects for the publick Advantage, than the Proprietors themselves. And when [5] the Exigencies of the State require a Supply, every Man is more obliged to contribute towards it, than [32] to satisfy his Creditors.

VII. What Aptitude is.VII. Aristotle calls Aptitude or Capacity, [1] ξίαν [2] Worth, or Merit: And Michael of Ephesus terms that which is called Equal or Right, according to that Merit, τ ποσάμοζον κα τ πέπον, Fit and Decent.

VIII. Of Expletive and Attributive Justice not properly distinguished by Geometrical and Arithmetical Proportions, nor is this conversant about Things common nor that about Things private.VIII. 1. ’Tis expletive Justice, Justice properly and strictly taken, which respects the Faculty, or perfect Right, and is called by Aristotle συναλλακτικ, Justice of Contracts, but this does not give us an adequate Idea of that Sort of Justice. For, if I have a Right to demand Restitution of my Goods, which are in the Possession of another, it is not by vertue of any Contract, [1] and yet it is the Justice in question that gives me such a Right. Wherefore he also calls it more properly πανο [6] θωτικν, [2] corrective Justice. Attributive Justice, stiledby Aristotle διανεμητικ [3] Distributive, respects Aptitude or imperfect Right, the attendant of those Virtues [4] that are beneficial to others, as Liberality, Mercy, and prudent Administration of [5] Government. But whereas the same Philosopher says, that Expletive Justice follows [6] a simple Proportion, which he calls ιθμητικν Arithmetical Justice; but Attributive, which he terms γεωμετικν [7] Geometrical, is regulated by a comparative Proportion, and which is the only Proportion [8] allowed by the Mathematicians, this may hold in some Cases, but not in all. Neither does Expletive Justice of itself differ from Attributive in such use of Proportions, but in the Matter, about which it is conversant, as we have said already. And therefore in a Contract of Society, [9] the Shares are made by a Comparative Proportion, and if only one [7] [10] Person be found worthy of a Publick Office, a simple Proportion is all that is necessary in disposing of it.

2. Neither is that more true which some maintain, that Attributive Justice is exercised about Things belonging to the whole Community; and Expletive about Things belonging to private Persons. For on the contrary, if a Man would bequeath his Estate by Will, he does it commonly by Attributive Justice; and when the State repays out of the [11] publick Funds what some of the Citizens had advanced for the Service of the Publick, it only performs an Act of Expletive Justice. This Distinction Cyrus learnt of his Tutor: For when Cyrus had adjudged the lesser Coat to the lesser Boy, tho’ it belonged to another Boy of a bigger size; and so on the other side gave his Coat, being the bigger, to that bigger Boy. His Tutor told him, τι πότε μν κατασταθείν το μόττοντος κιτς, &c. That [12] had he been appointed Judge of what fitted each of them best, he ought to have done as he did: But since he was to determine whose Coat it was, his Business was to have considered [13] which had a just Title to it, whether he who took it away by Force, or he who made it, or bought it.

[8]

IX. Right taken for a Rule or Law defined and divided into Natural and Voluntary.IX. There is also a third Sense of the Word Right, according to which it signifies the same Thing [1] as Law, when taken in its largest Extent, as being a Rule of [2] Moral Actions, obliging [3] us to that which is good and commendable. I say, obliging: for [4] Counsels, and such other Precepts, which, however honest and reasonable they be, lay us under no Obligation, come not under this Notion of Law, or Right. As to Permission, it is not [5] properly speaking an Action of the Law, but a meer Inaction, [9] unless as it obliges every other Person not to hinder the doing of that, which the Law permits any one to do. I add moreover, that the Law obliges us to that which is good and commendable, not barely to that which is just: Because Right in this Sense does not belong to the Matter of Justice alone (such as I have before explained it) but also to that [6] of other Virtues; tho’ otherwise, whatever is conformable to this Right, may also, in a larger Acceptation, be termed [7] Just. Of this Right, thus taken, the best Division is that of [8] Aristotle, into Natural and Voluntary, which he commonly calls Lawful Right; the Word Law being taken in [9] its stricter Sense: Sometimes also [10] an Instituted Right. We find the same Difference among the Hebrews, who when they speak distinctly, call the Natural Right מצות [11] Precepts, and the Voluntary Right חקים Statutes; the former of which the Septuagint call δικαιώματα, and the latter ντολς.

X. The Law of Nature defined, divided, and distinguished from such as are not properly called so.X. 1. Natural Right is the Rule and Dictate of [1] Right Reason, shewing the Moral Deformity or Moral Necessity there is in any Act, according to its Suitableness or Unsuitableness to a reasonable Nature, [2] and consequently, that such an Act is either forbid or commanded by GOD, the Author of Nature.

2. The Actions upon which such a Dictate is given, are in themselves either [3] Obligatory or Unlawful, and must, consequently, be understood to be either [10] commanded or forbid by God himself; and this makes the Law of Nature differ not only from Human Right, but from a Voluntary Divine Right; for that does not command or forbid such Things as are in themselves, or in their own Nature, Obligatory and Unlawful; but by forbidding, it renders the one Unlawful, and by commanding, the other Obligatory.

3. But that we may the better understand this Law of Nature, we must observe, that some Things are said to belong to it, not properly, but (as the Schoolmen love to speak) by way of Reduction or Accommodation, that is, to which the Law of [11] Nature is not [4] repugnant; as some Things, we have now said, are called Just, because they have no Injustice in them; and sometimes by the wrong Use of the Word, [5] those Things which our Reason declares tobehonest, or comparatively good, tho’they are not enjoined us, are said to belong to this Natural Law.

4. We must further observe, that this Natural Law does not only respect such Things as depend not upon Human Will, but also many [6] Things which are consequent to some Act of that Will. Thus, Property for Instance, as now in use, was introduced by Man’s Will, and being once admitted, this Law of Nature informs us, that it is a wicked Thing to take away from any Man, against his Will, what is properly his own. Wherefore [7] Paulus the Civilian infers, that [8] Theft is forbid by the Law of Nature: Ulpian, that it is [9] Dishonest by Nature: And [10] Euripides calls it Hateful to GOD, as you may see in these Verses of Helena,

Μισε γ θες, &c.

5. As for the Rest, the Law of Nature is so unalterable, that [11] God himself cannot change it. For tho’ the Power of God be infinite, yet we may say, that there are some [12] Things to which this infinite Power does not extend, because they cannot be expressed by Propositions that contain any Sense, but manifestly imply a Contradiction. For Instance then, as God himself cannot effect, that twice two should not be four; so neither can he, that what is intrinsically Evil [13] should [12] not be Evil. And this is Aristotle’s Meaning, when he says, νια υθς νόμασται,&c. [14] Some Things are no sooner mentioned than we discover Depravity in them. For as the Being and Essence of Things after they exist, depend not upon any other, so neither do the Properties which necessarily follow that Being and Essence. Now such is the Evil of some Actions, compared with a Nature guided by right Reason. Therefore God suffers himself to be judged of according to this Rule, as we may find, Gen. xviii. 25. Isa. v. 3. Ezek. xviii. 25. Jer. ii. 9. Mich. vi. 2. Rom. ii. 6. iii. 6.

6. Yet it sometimes happens, that in those Acts, concerning which the Law of Nature has determined something, some Sort of Change may deceive the Unthinking; tho’ indeed the Law of Nature, which always remains the same, is not changed; but the Things concerning which the Law of Nature determines, and which may undergo a Change. As for Example: If my Creditor forgive me my Debt, I am not then obliged to pay it; not that the Law of Nature ceases to command me to pay what I owe, but because what I did owe ceases to be a Debt. For as Arrian rightly argues in Epictetus, υκ κε τ δανείσαθαι πς τ είλειν, λλ δε ποσεναι κα τ πιμένειν π το δανείου κα μ διαλελύσθαι ατ. Non sufficit, &c. [15] To make a just Debt, it is not enough that the Money was lent, but it is also requisite, that the Obligation continue undischarged. So when God commands [16] any Man to be put to Death, or his Goods to be taken away, Murder and Theft do not thereby become lawful, which very Words always include a Crime; but that cannot be Murder or Theft, which is done by the express Command of him who is the Sovereign Lord of our Lives and Estates.

7. There are also some Things allowed by the Law of Nature, not absolutely, but according to a certain State of Affairs. Thus, before Property was introduced, [17] every Man had naturally a full Power to use what ever came in his Way. And before Civil Laws were made, every one was at Liberty [18] to right himself by Force.

XI. That Natural Instinct does not make another distinct Law.XI. 1. But that Distinction, which we find in the Books of the Roman Laws, of immutable Right into such as is [1] common to Men with Beasts, which they call in a strict Sense the Law of Nature; and that which is peculiar to Men, which they often style the Law of Nations, is of very little or no use; for nothing is properly susceptible of Right and Obligation, but a Being that is capable of forming [2] general Maxims, as Hesiod has well observed,

Τόν δε γά νθώποισι νόμον, &c.

[13] [3] Jupiter has ordained that Fishes, wild Beasts, and Birds should devour each other, because Justice doth not take place amongst them: But to [4] Men he has prescribed the Law of Justice, which is the most excellent Thing in the World.

Cicero in his first Book of Offices [5] remarks, that we do not say Horses and Lions have any Justice. And Plutarch, in the Life of Cato the Elder, νόμω μν γ, &c. We by Nature observe Law and Justice, only towards Men. And Lactantius, in his fifth Book, [6] We find that all Animals, destitute of Wisdom, follow the natural Biass of Self-Love. They injure others to procure themselves some Advantage; for they know not what it is to hurt with a View of hurting, and with a Sense of the Evil that is in it. But Man, having the Knowledge of Good and Evil, abstains from hurting others, tho’ to his own Detriment. [7] Polybius having related in what Manner Men first engaged in Society, adds, when they saw any one offending his Parents or Benefactors, they could not but resent it, giving this Reason for it, Το γ γένους τν νθώπων ταυτ διαέοντος, &c. For since human Kind does in this differ from other Animals, that they alone enjoy Reason and Understanding, ’tis very unlikely that they should (as other Animals) pass by an Action so repugnant to their Nature, without reflecting on, and testifying their Displeasure at it.

2. If at any Time [8] Justice be attributed to brute Beasts, it is improperly, and only on the Account of some Shadow or Resemblance of Reason [9] in them. But it is not material to the Nature of Right, whether the Act itself, on which the Law of Nature has decreed, be common to us with other Animals, as the bringing up of our Offspring, &c. or peculiar to us only, as the Worship of God.

XII. How the Law of Nature may be proved.XII. Now that any Thing is or is not by the Law of Nature, is generally proved either à priori, that is, by Arguments drawn from the very Nature of the Thing; or à posteriori, that is, by Reasons taken from something external. The former Way of Reasoning is more subtle and abstracted; the latter more popular. The Proof by the former is by shewing the necessary Fitness or Unfitness of any Thing, with a reasonable and sociable Nature. But the Proof by the latter is, when we cannot with absolute Certainty, [1] yet with very great Probability, [14] conclude that to be by the Law of Nature, which is generally believed to be so by all, or at least, the most civilized, Nations. For, an universal Effect requires an universal Cause. And there cannot well be any other Cause assigned for this general Opinion, than what is called Common Sense.

There’s a Passage in Hesiod to this Purpose, very much commended.

Φήμη δ’ οτις, &c.

[2] That which is generally reported amongst many Nations is not intirely vain.

Τ χοιν αινόμενα πιστ. [3] That is certain, which universally appears to be so, [4] said Heraclitus, determining λόγον τν ξυνν, [5] Common Reason to be the surest Mark of Truth. And Aristotle, [6] κάτιστον πάντας, &c. ’Tis the strongest Proof, if all the World agree to what we say. Cicero, [7] The Consent of all Nations is to be reputed the Law of Nature. So Seneca, [8] What all Men believe must be true. Likewise Quintilian, We allow [9] that to be certainly true which all Men agree in. I with some Reason said, By the most civilized Nations; for as [10] Porphyry well observes, τίνα τν θνν, &c. Some People are savage and brutish, [11] whose Manners cannot, with Truth and Justice, be reckoned a Reproach to human Nature in general. And Andronicus Rhodius, πα’ νθώποις, &c. That Law [12] which is called the Law of Nature, is unchangeable, in the Opinion of all Men who are of a right and sound [15] Mind: But if it does not appear so to Men of weak and disturbed Judgments, it argues nothing to the Purpose; for we all allow Honey to be sweet, tho’ it may taste otherwise to a sick Person. To which agrees that of Plutarch, in the Life of Pompey, Φύσει μν, &c. [13] No Man either was or is by Nature a wild and unsociable Creature, but some have grown so by addicting themselves to Vice, contrary to the Rules of Nature; and yet these, by contracting new Habits, and by changing their Method of living, and Place of abode, have returned to their natural Gentleness. Aristotle gives this Description of Man, as peculiar to him, νθωπος ζον μεον ύσει, [14] Man is by [15] Nature a mild Creature. And elsewhere, δε δ σκοπεν, &c. [16] To judge of what is natural, we must consider those Subjects that are rightly disposed, according to their Nature, and not those that are corrupted.

XIII. Voluntary Right divided into Human and Divine.XIII. The other kind of Right, we told you, is the [1] Voluntary Right, as being derived from the Will, and is either Human or Divine.

XIV. Human Right divided into a Civil Right, a less extensive, and a more extensive Right than the Civil: This explained and proved.XIV. We will begin with the Human, as more generally known; and this is either a Civil, a less extensive, or a more extensive Right than the Civil. The Civil Right is that which results from the Civil Power. The Civil Power is that which governs the State. The State is a [1] compleat Body of free Persons, associated together to enjoy peaceably their Rights, and for their common Benefit. The less extensive Right, and which is not [2] derived from the Civil Power, though subject to it, is various, including in it the Commands of a Father to his Child, of a Master to his Servant, and the like. But the more extensive Right, is the Right of Nations, which derives its Authority from [3] the Will of all, or at least of [4] many, Nations. I say of many, because there is scarce any Right found, except that of Nature, which is also called the Right of Nations, common to all Nations. Nay, that which is reputed the Right or Law of Nations in one Part of the World, is not so in another, as we shall shew [5] hereafter, when we come to treat of Prisoners of War, and Postliminy or the Right of Returning. Now the Proofs on which the Law of Nations is founded, [16] are the same with those of the unwritten Civil Law, viz. continual Use, and the Testimony of Men skilled in the Laws. For this Law is, as Dio Chrysostom well observes, [6] εημα βίου κα χόνου, the Work of Time and Custom. And to this purpose eminent Historians are of excellent Use to us.

XV. The Divine Law divided into that which is universal, and that which is peculiar to one Nation.XV. The Divine voluntary Law (as may be understood from the very Name) is that which is derived only from the [1] Will of GOD himself; whereby it is distinguished from the Natural Law, which in some Sense, as we have said above, may be called Divine also. And here may take Place that which Anaxarchus said, as Plutarch relates in the Life of Alexander, (but too generally) that [2] GOD does not will a Thing because it is just; but it is just, that is, it lays one under an indispensible Obligation, because GOD wills it. And this Law was given either to all Mankind, or to one People only: We find that GOD gave it to all Mankind at three different Times. First, Immediately after [3] the Creation of Man. [17] Secondly, Upon the Restoration of Mankind [4] after the Flood. And thirdly, Under the Gospel, in that more perfect reestablishment by [5] CHRIST. These three Laws do certainly oblige all Mankind, as soon as they are sufficiently made known to them.

XVI. That the Law given to the Hebrews did not oblige Strangers.XVI. Of all the Nations of the Earth, there was but one, to whom GOD peculiarly vouchsafed to give Laws, which was that of the Jews, to whom Moses thus speaks, Deut. iv. 7. What Nation is there so great who hath GOD so nigh unto them, as the LORD our GOD is in all Things that we call upon him for? And what Nation is there so great, who have Statutes and Judgments so righteous, as all this Law, which I set before you this Day. And the Psalmist, cxlvii. 19, 20. He shewed his Word unto Jacob, his Statutes and Ordinances unto Israel. He hath not dealt so with any Nation, and as for his Judgments they have not known them. Neither is it to be doubted, but that those Jews (among whom Tryphon also in his Disputes with Justin) do egregiously err, who think that Strangers too, if they would be saved, [1] must submit to the Yoke of the Mosaick Law: For a Law obliges only those, to whom it is given. And [2] to whom that Law is given, itself [18] declares, Hear O Israel; and we read every where that the Covenant was made with them, and that they were chosen to be the peculiar People of GOD, which Maimonides owns to be true, and proves it from Deut. xxxiii. 4.

But among the Hebrews themselves the real ways lived some Strangers, υσεβες κα σεβόμενοι τν θεν, [3] Pious Persons, and such as feared GOD, as the Syrophenician Woman, Matt. xv. 22. And Cornelius, Acts x. 2. one τν σεβομένων λλήνων of the devout Greeks, Acts xvii. 4. in the Hebrew, חםיךו אומות the Righteous amongst the Gentiles; as it is read in the Talmud, Title of the King; [4] and he who is such a one is called in the Law כן רבג a Stranger [5] simply, Lev. xxii. 25. or, גד ותושב [6] a Stranger, and a Sojourner, Lev. xxv. 47. Where the Chaldee Paraphrast calls him, an Uncircumcised Inhabitant. These, as the Hebrew Rabbins say, were obliged to keep the Precepts given to Adam and Noah, to abstain from Idols and Blood, and from other Things, which shall be mentioned hereafter in their proper Place; but not the Laws peculiar to the Israelites. And therefore, tho’ it was not lawful for the Israelites to eat of any Beast that died of itself, yet it was allowed [7] to the Strangers that dwelt among them, Deut. xiv. 21. There are only [19] [8] some Laws, where it is expressly declared, that they were given for the Strangers as well as for the Natives. It was also allowed to Strangers who came from Abroad, and [9] never submitted to the Levitical Law, to worship GOD in the Temple at Jerusalem, and to offer Sacrifices; but yet [10] they were obliged to stand in a particular Place, separate from that of the Israelites, 1 Kings viii. 41. 2 Macc. iii. 35. John xii. 20. Acts viii. 27. Nor do we find that [11] Elisha signified to Naaman the Syrian, nor Jonah to the Ninevites, nor Daniel to Nebuchadnezzar, nor the other Prophets to the Tyrians, Moabites, and Egyptians, to whom they wrote, that there was any Necessity for them to receive the Law of Moses.

What I have here said of the whole Law of Moses, I would be understood to mean of Circumcision too, which was, as it were, the Introduction to the Law. There is only this Difference, that the Law of Moses obliged only the Israelites; but that of Circumcision obliged all the Posterity of Abraham. Whence we read in the Jewish and Greek Histories, that the [12] Idumeans (the Edomites) were compelled by the Jews to be circumcised: Wherefore those People who, besides the Jews, were circumcised, (as there were many, according to [13] Herodotus, [14] Strabo, [15] Phi- [20] lo, [16] Justin, [17] Origen, [18] Clemens Alexandrinus, [19] Epiphanius, [20] St. Jerom, and [21] Theodoret) were probably descended from Ismael, Esau, or [22] ] the Posterity of Keturah.

But of all other Nations that of St. Paul holds true, Rom. ii. 14, 15. Since the Gentiles, who have not the Law, do by Nature (that is by [23] following in their Manners, the Rules which flow from the primitive Source, or from Nature, unless you had rather refer the Word Nature to what goes before, and so [24] oppose the Knowledge which the Gentiles acquired of themselves, and without Instruction, to that which the Jews had by means of the Law, which they were taught almost from the Cradle) the Things contained in the Law; these having not the Law are a Law unto themselves, as shewing the Work of the Law written in their Hearts, their Consciences also bearing Witness, and their Thoughts the mean while accusing or [21] else excusing one another. And again, in the 26th Verse, If the Uncircumcision keep the Righteousness of the Law, shall not his Uncircumcision be counted for Circumcision? And therefore, Ananias the Jew, in the History of Josephus, did very well instruct Izates Adiabenus, ( [25] Tacitus calls him Ezates) that GOD might be rightly worshipped, and [26] well pleased with us, tho’ we were not circumcised. Now the Reason why so many Strangers were circumcised (among the Jews) and by that Circumcision obliged to keep the Law, (as St. Paul expounds it, Gal. v. 3.) was partly that they might be naturalized; for Proselytes (called by the Hebrews גרי צרק Proselytes of Righteousness) [27] enjoyed the same Rights and Privileges with the Israelites, (Numb. xv.); and partly, that [28] they might be Partakers of those Promises which were not common to Mankind, but peculiar to the Hebrews only. Tho’ I cannot deny, but that in latter Ages some entertained an erroneous Opinion, that there could be [29] no Salvation without the Pale of the Jewish Church. Hence we may conclude, that we (who are not Jews) are obliged to no Part of the Levitical Law, as a Law [30] properly so called, because all Obligation beyond that, arising from the Law of Nature, is derived from the Will of the Law-giver; but it cannot be made appear, that it was the Will of GOD, that any other People, beside the Israelites, should be bound by that Law; and therefore, as to us, it is by no Means necessary to prove the abrogating of that Law; for it cannot be said to be abrogated in respect to them whom it never bound. But the Obligation of it was abolished to the Israelites, as to the ceremonial Part, as soon as ever the Evangelical Law began to be published, which was manifestly revealed to St. Peter, Acts x. 15.; but as to the Rest, after that People ceased to be a People, by the Destruction of their City, and the utter Desolation of it, without any Hopes of Restauration. The Advantage which we who are Strangers have obtained by the Coming of CHRIST, does not then consist in being freed from the Law of Moses; but, whereas before, we had only very weak Hopes in the Goodness of GOD, we are now, by an express Covenant, assured thereof; and we, together with the Jews, (the Children of the Patriarchs) are made one Church; their Law, which as a Partition Wall divided us, being quite taken away, Eph. ii. 14.

XVII. What Arguments Christians may fetch from the Judaical Law, and how.XVII. Since then the Mosaick Law cannot directly oblige us (as I have already shewed) let us see of what other Use it may be to us, as well in regard to the Right of War, which we are to treat of, as in other like Cases. For the Knowledge of it may be necessary in many Points.

First then, the Law of the antient Hebrews serves to assure us, that nothing is injoined there contrary to the Law of Nature; for since the Law of Nature (as I said before) is perpetual and unchangeable, nothing could be commanded by GOD, who can never be unjust, contrary to this Law. Besides, the Law of Moses is called pure and right, Psalm xix. 8. and by the Apostle St. Paul, holy, just, and good, Rom: vii. 12.

I speak of its Precepts, for we must treat more distinctly of its Permissions. Now the Permission, positively granted by the Law, (for that which is of the [1] bare Fact, and signifies the Removal only of Hindrances, on the Part of the [22] Law, is not to the present Purpose) is either compleat, and without Reserve, which gives us a Right to do something with an intire Liberty in all Respects; or less compleat, and with Reserve, which gives us only an Impunity with Men, and a Right to do a Thing, so as that no Man shall molest and hinder us. From the first of these Permissions, as well as from a positive Precept, it follows, that what the Law allows, cannot be contrary to the Right of Nature. But as to the latter, [2] the Case is entirely different: But it seldom happens that there is Occasion to draw that Consequence with Certainty; [3] for the Terms which express the [23] Permission being equivocal, it is better to have Recourse to the Principles of the Law of Nature, in order to discover what Kind the Permission is of, than to conclude from the Manner in which the Permission is conceived, that the Thing permitted is conformable or not conformable to the Law of Nature.

The next Observation is not unlike this, viz. That Christian Princes may now make Laws of the same Import with those given by Moses, unless they be such Laws as wholly related either to the Time of the expected Messias, and the Gospel, not then published; or that CHRIST himself has either in [4] general, or in [5] particular commanded the contrary: For, excepting these three Reasons, no other can be imagined, why that which the Law of Moses formerly established, should now be unlawful.

The third Observation may be this; whatsoever was enjoined by the Law of Moses, which relates to those Virtues that CHRIST requires of his Disciples, ought now as much, if not more, [6] to be observed by us Christians. The Ground of this Observation is, because what Virtues are required of Christians, as Humility, Patience, Charity, &c. are to be practised in a [7] more eminent Degree, than under the State of the Hebrew Law, and that with good Reason too; because the Promises of Heaven are more clearly proposed to us in the Gospel. Wherefore the old Law, in comparison with the Gospel, is said to be neither perfect nor μεμπτος faultless, Heb. vii. 19. viii. 7. And CHRIST is termed the End of the Law, Rom. x. 5. but the Law only our Schoolmaster, or Guide, to bring us unto CHRIST, Gal. iii. 24. Thus the old Law concerning the Sabbath, and [8] that relating to Tythes, shew, that Christians are obliged to set apart no less than the seventh Part of their Time for the Worship of GOD, nor no less than the tenth Part of their Income for the Maintenance of those who are employed in Holy Affairs, or for other Sacred and Pious Uses.

CHAPTER II↩

Whether ’tis ever Lawful to make War.

Having viewed the Sources of Right, let us proceed to the first and most general Question, which is, Whether any War be Just, or, Whether ’tis ever Lawful to make War?

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I. That to make War is not contrary to the Law of Nature, proved by Reason.I. 1. But this Question, as well as those which follow, is to be first examined by the Law of Nature. Cicero learnedly proves, both in the third Book of His Bounds of Good and Evil, and in other Places, from the Writings of the Stoicks, that there are two Sorts of natural Principles; some that go before, and are called by the Greeks Τ πτα κατ ύσιν, The first Impressions of Nature; and others that come after, but ought to be the Rule of our Actions, preferably to the former. [1] Gel. xii. c.5 What he calls The first Impressions of Nature, is that Instinct whereby every Animal seeks its own Preservation, and loves its Condition, and whatever tends to maintain it; but on the other Hand, avoids its Destruction, and every Thing that seems to threaten it. Hence comes it, says he, that there’s no Man left to his Choice, who had not rather have all the Members of his Body perfect and well shaped, than maimed and deformed. And that ’tis the first Duty of every one to preserve himself in his natural State, to seek after those Things which are agreeable to Nature, and to avert those which are repugnant.

2. After that follows, (according to the same Author) [2] the Knowledge of the Conformity of Things with Reason, which is a Faculty more excellent than the Body; and this Conformity, in which Decorum consists, ought (says he) to be preferred to those Things, which mere natural Desire at first prompts us to; because, tho’ the first Impressions of Nature recommend us to Right Reason; yet Right Reason should still be dearer to us [3] than that natural Instinct. Since these Things are undoubtedly true, and easily allowed by Men of solid Judgment, without any farther Demonstration, we must then, in examining the Law of Nature, first consider [4] whether the Point in Question be conformable to the first Impressions of Nature, and afterwards, whether it agrees with the other natural Principle, which, tho’ posterior, is more excellent, and ought not only to be embraced when it presents itself, but also by all Means to be sought after.

3. This last Principle, which we call Decorum, according to the Nature of the Things upon which it turns, sometimes consists (as I may say) in an indivisible Point; so that the least [5] Deviation from it is a Vice: And sometimes it has [6] a large Extent; so that if one follows it, he does something commendable, and yet, without being guilty of any Crime, he may not follow it, or may even act quite otherwise: Just as in contradictory Things, one passes immediately from one Extreme to the other; a Thing either is or is not, there is no Medium: But [25] between Things that are opposed after another Manner, as between Black and White, there is a Medium, which either partakes of both Extremes, or is equally removed from both. The last Sort of Decorum is most commonly the Subject of Laws both Divine and [7] Human, which by prescribing Things relating thereto, render them obligatory, whereas before they were only commendable. But the Matter in Question is concerning the first Sort of Decorum. For, as we have said above, when we enquire into what belongs to the Law of Nature, we would know whether such or such a Thing may be done without Injustice; and by unjust we mean that which has a necessary Repugnance to a reasonable and sociable Nature.

Among the first Impressions of Nature there is nothing repugnant to War; nay, all Things rather favour it: For both the End of War (being the Preservation of Life or Limbs, and either the securing or getting Things useful to Life) is very agreeable to those first Motions of Nature; and to make use of Force, in case of Necessity, is in no wise disagreeable thereunto; since Nature has given to every Animal Strength to defend and help itself. All Sorts of Animals, says Xenophon, [8] understand some Way of Fighting, which they learnt no where but from Nature. So, in a Fragment of Ovid’s [9] Halieuticon: Or, Art of Fishery, All Animals naturally know their Enemy, and how to defend themselves: They are sensible of the Force and Quality of their Weapons, And in Horace, The Wolves assault with Teeth, and the Bulls with Horns: Whence is it but from Instinct? But Lucretius more fully, Every Animal knows its own Power: A Calf is sensible of its Horns, even before they are grown, and [10] will push with its Head, when provoked. Which Galen thus expresses, We see every living Creature employ his strongest Part in his own Defence: The Calf pushes with his Head, tho’ his Horns be not yet grown; the Colt kicks with his Hoofs, tho’ yet tender; and the Whelp bites with his Teeth, as yet but weak. And the same Author tells us, in his First Book Of the Functions of the Members, That Man is an Animal by Nature fitted for Peace and [11] War; that he is not indeed born with Arms, but with Hands [12] proper to make and to use Arms, so that we see the very Infants defend themselves with their Hands, without being taught. So [13] Aristotle says, Man has a Hand, instead of a Spear, a Sword, and other such Weapons; as being capable of grasping and holding every Thing else.

But Right Reason, and the Nature of Society, which is to be examined in the second and chief Place, does not prohibit all Manner of Violence, but only that which is repugnant to Society, [14] that is, which invades another’s Right: For the Design of Society is, that every one should quietly enjoy his own, with the Help, [26] and by the united Force of the whole Community. It may be easily conceived, that the Necessity of having Recourse to violent Means for Self-Defence, might have taken Place, even tho’ what we call Property had never been introduced. For our Lives, Limbs, and Liberties, had still been properly our own, and could not have been, (without manifest Injustice) invaded. So also, to have made use of Things that were then in common, and to have consumed them, as far as Nature required, had been the Right of the first Possessor: And if any one had attempted to hinder him from so doing, he had been guilty of a real Injury. But since Property has been regulated, either by Law or Custom, this is more easily understood, which I shall express in the Words of [15] Tully, If every Member of the Body was capable of Reflection, and did really think that it should enjoy a larger Share of Health, if it could attract to itself the Nourishment of the next Member, and should thereupon do it, the whole Body would of Necessity languish and decay: So if every Man were to seize on the Goods of another, and enrich himself by the Spoils of his Neighbour, human Society and Commerce would necessarily be dissolved. Nature allows every Man to provide the Necessaries of Life, rather for himself than for another; but it does not suffer any one to add to his own Estate, by the Spoils and Plunders of another.

It is not then against the Nature of Human Society, for every one to provide for, and take Care of himself, so it be not to the Prejudice of another’s Right; and therefore the Use of Force, which does not invade the Right of another, is not unjust; which the same [16] Cicero has thus expressed, Since there are but two Ways of Disputing, the one by Argument, the other by Force; and the former being peculiar to Man, and the other to Beasts, we must not have recourse unto the last, but when the first cannot be employed. And [17] again, What can be opposed to Force, but Force? And in Ulpian, [18] To repel Force by Force is naturally lawful. So in Ovid, [19]

Armaque in armatos sumere jura sinunt.

The Laws permit us to take Arms against those who are armed to attack us.

II. Proved by History.II. What I have said already, that every War is not repugnant to the Law of Nature, may be further proved from sacred History. For when Abraham, with the Assistance of his hired Servants and Confederates, had vanquished the four Kings which had plundered Sodom, GOD was pleased, by his Priest Melchisedech, to approve of his Action; for thus said Melchisedech to him, Blessed be the most high GOD, who hath delivered thine Enemies into thine Hand, Gen. xiv. 20. Yet had Abraham, (as appears from the History) taken up Arms without any special Warrant from GOD, but moved thereunto by the Law of Nature, being a Man not only very holy, but also very wise, as is testified of him even by Strangers, as [1] Berosus and [2] Orpheus. I shall not instance in the seven Nations, whom GOD delivered up to be destroyed by the Israelites, because they had a special Commission from GOD to execute this Judgment upon them, for their notorious Abominations. Wherefore those Wars in Holy Writ are called, in a literal Sense, Battles of the [3] LORD, as being undertaken by the Command of GOD, and not the Will of [27] Man. It is more to our Purpose to remark, that the Israelites, under the Conduct of Moses and Joshua, having by Force of Arms repelled the Amalekites, who attacked them, Exod. xvii. GOD approved the Conduct of his People, tho’ he had given no Orders upon that Head before the Action.

And further, GOD himself prescribed to his People certain general and established Rules of making War, Deut. xx. 10, 15. thereby plainly shewing, that War might sometimes be just, even without a special Command from GOD; for there he makes a manifest Difference between the Cause of those seven Nations, and that of other People. And since he does not declare the just Reasons of making War, he thereby supposes that they may be easily discovered by the Light of Nature. Such was the Cause of the War made by Jephtha against the Ammonites, in defence of their Borders, Judges xi. and afterwards by David against the same People, for affronting his Ambassadors, 2 Sam. x. And it is very remarkable, what the Author of the Epistle to the Hebrews records, that Gideon, Barack, Sampson, Jephtha, Samuel, and others, by Faith subdued Kingdoms, waxed valiant in Fight, put to flight whole Armies of the Aliens, Heb. xi. 33, 34. in which Place, (as we may gather from the Context) under the Notion of Faith, is included their assured Confidence, that what they did was pleasing to GOD: And upon this Account David is said, by a Woman distinguished for her Wisdom, To fight the LORD’s Battles; that is, to make just and lawful Wars, 1 Sam. xxv. 28.

III. Proved by Consent.III. What we have here proved from Holy Writ, may be also confirmed, by the Consent of all, or at least the wisest Nations. Every Body knows that fine Passage of Cicero, where treating of the Right of recurring to Force, in defence of one’s Life, he renders this Testimony to Nature, [1] This (says he) is not a written, but a Law born with us, which we have not learned, received, or read, but taken and drawn from Nature itself; a Law to which we have not been formed, but for which we are made; in which we have not been instructed, but with which we are imbued; that if our Lives be brought into Danger by Force or Fraud, either by Robbers or Enemies, all Means that we can use for our Preservation, are [2] fair and honest. And again, This, Reason has taught the Intelligent, Necessity the Barbarians, Custom the Nations, and Nature herself the wild Beasts, at all Times to repel, by any Means whatsoever, all Force (or Violence) offered to our Bodies, our Members, or our Lives. Caius the Lawyer says, [3] Natural Reason allows us to defend ourselves against Danger. And Florentinus the Lawyer, that [4] It is but just, that whatever any one does in defence of his Body, should be held lawfully done. [5] Josephus observes, That it is a Law of Nature, fixed in all living Creatures, to be desirous of Life; and that we therefore look on them as our Enemies, who would openly deprive us of it.

This Principle is founded on Reasons of Equity, so evident, that even in Beasts, which (as I said [6] before) are not susceptible of Right, but have only some slight Resemblance of it, we distinguish between the Attack and the Defence. When Ulpian [7] had said, that An Animal [8] without Knowledge, that is, without the Use of Reason, is incapable of doing Wrong, he immediately adds, When two Rams, or two Bulls fight, and one kills the other, it must be considered, (according to Q. Mu- [28] tius) whether that which is killed was the Aggressor, or not; in the last Case, the Owner has an Action of Damage against the Master of the other Beast; but in the first he has no Action against him. Which may be explained by that of Pliny, [9] Lions, as fierce as they are, do not fight with Lions, nor do Serpents bite Serpents; but if Violence be offered them, there are none so tame but will exert their Anger, none so patient of Injury, but, upon receiving Hurt, will make an active and vigorous Defence.

IV. That War is not contrary to the Law of Nations.IV. By the Law of Nature then, which may also be called the Law of Nations, it is plain, that every Kind of War is not to be condemned. History, and the Laws and Customs of all People, fully inform us, that War is not disallowed of by the Voluntary Law of Nations: Nay, [1] Hermogenianus declares, that Wars were [2] introduced by the Law of Nations, which I think ought to be interpreted somewhat different from what it generally is, viz. That the Law of Nations has established a certain Manner of making War; so that those Wars which are conformable toit, have, by the Rules of that Law, certain peculiar Effects: Whence arises that Distinction which we shall hereafter make use of, between a solemn War, which is also called Just, (that is, regular and compleat) and a War not solemn, which yet does not therefore cease to be just, that is, agreeable to Right. For tho’ the Law of Nations does not authorize Wars not solemn, yet it does not condemn them, (provided the Cause be just) as shall hereafter be more [3] fully explained. By the Law of Nations, ( says Livy) [4] it is allowed to repel Force by Force. And Florentinus [5] declares it to be allowed by the Law of Nations to repel Violence and Wrong, and to defend our Lives.

V. That the Voluntary Divine Law before Christ was not against it, proved; and the Objections answered.V. There is a greater Difficulty concerning the Voluntary Divine Law: But let none here object, that the Law of Nature being unchangeable, GOD himself cannot decree any Thing against it; for it is true, as to those Things which the Law of Nature either positively forbids or commands, but not as to those that are barely permitted by the Law of Nature; for they, being properly [1] without the Bounds of the Law of Nature, may be either prohibited or commanded, as shall be thought proper. The first Objection then against War, brought by some, is that Law given to Noah and his Posterity, Gen. ix. 5, 6. where GOD thus speaks, Surely the Blood of your Lives will I require; at the Hand of every Beast will I require it, and at the Hand of Man; at the Hand of every Man’s Brother will I require the Life of Man. Whosoever sheds Man’s Blood, by Man shall his Blood be shed; for in the Image of GOD made he Man. And here some take the Phrase of requiring Blood in a general Sense, and the other, that Blood shall be shed in its turn, to be a bare Threatening, and not an Approbation; neither of which Explications can I agree to. For the forbidding to shed Blood, reaches no further than that in the Law, Thou shalt not kill; which neither disproves Capital Punishments inflicted on Criminals, nor Wars undertaken by publick Authority. Therefore, both the [29] Law of Moses, and the Law given to Noah, tend rather to explain and renew the Law of Nature, obscured, and, as it were, extinguished by wicked Customs, than to establish any Thing new: So that the Shedding of Blood, prohibited by the Law given to Noah, ought to be understood in that Sense which implies a Crime; as by Murder we understand not every Act whereby the Life of a Man is taken away, but the premeditated killing of an innocent Person. And that which follows, of shedding Blood for Blood, seems to me not so much to denote the bare Fact, or what shall happen, [2] as the Right that Men have to put Murderers to Death.

I thus explain the Case. It is not unjust by the Law of Nature, that a Man should suffer himself as much Evil, as he has caused (to others); according to that which is called The [3] Law of Rhadamanthus.

To suffer what one has done, is Just and Right.

And Seneca the Father expresses it thus, [4] It often happens that one suffers, by a most just Retaliation, in the same Manner that one had designed to make another suffer. From a Sense of this natural Equity, Cain, guilty of Parricide, says of himself, Gen. iv. 14. Whosoever finds me shall kill me. But GOD in those early Days, either upon the Account of the Scarcity of Men, or because there being yet but few Examples of Murder, it was not so necessary to punish it, thought fit to prohibit what was naturally permitted; and ordered that all Intercourse with, and even the [5] Touching of Murderers should be avoided, but that their Lives should be spared. As [6] Plato also appointed in his Laws; and [7] Euripides informs us, that it was practised by the old Greeks, in these Verses,

Καλς θεντο, &c.

Our Fathers, in antient Times, had wisely ordered, that whoever embrued his Hands in the Blood of another, should not appear in the Sight of any one in the Country: Banishment was the Punishment inflicted on him for the Murder; but it was not permitted to take away his Life, as he had taken away the Life of another. To which we may refer that of Thucydides, [* It is probable, that in former Days heinous Crimes were slightly punished, but when in Time these Punishments came to be despised, they were changed into Death. And Lactantius, [* As yet it was reputed a Sin to put even the greatest Offenders to Death.

Their Conjecture of the Divine Will, grounded on that remarkable Instance (of Cain) passed into a Law; so that Lamech having [8] committed the like Fact, from this Example promised himself Impunity, Gen. iv. 24.

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But as before the Flood, in the Times of the Giants, Murders were very frequent and common; that the same Licentiousness might not become customary, after the Restoration of Mankind, GOD was pleased to restrain it by more rigorous and effectual Means. Having then abolished the Indulgence of former Ages, he put Men in Possession of their natural Right; he expressly permitted what Nature dictated not to be unjust, and declared every Person [9] innocent that killed a Murderer. When Civil Tribunals were erected, that Permission, for very strong Reasons, was transferred solely to the Judges; yet so, that some Track of that antient Custom was to be seen, in the Right granted to him that was next of Kin to the Person killed, even after the Law of Moses; of which [10] I shall treat more largely hereafter.

We have the great Abraham to justify this Interpretation, who not being ignorant of the Law given to Noah,Gen. vi. 9. took up Arms against the four Kings, which he believed not repugnant to that Law. So Moses commanded the People of Israel to fight against the Amalekites that came to attack them, without any other Reason than the Law of Nature; for it does not appear that he particularly consulted GOD in this Case.Ex. xvii. 9. Besides, capital Punishments were not only inflicted on Murderers, but also on other Sorts of Criminals, and that not only among the Gentiles,Gen. xxxviii. 24. but even among the Patriarchs themselves.

They concluded from the Light of natural Reason, that it was consonant to the Divine Will, that the Punishment appointed for Murderers might, without Injustice, be inflicted on other most heinous Offenders; for there are some Things which we prize equally with our Lives; as Reputation, Virgin-Chastity, conjugal Fidelity; and those Things without which our Lives cannot be safe, as Reverence to our Sovereigns; against which those who offend are to be accounted as bad as Murderers.

Hither we may refer that antient Tradition among the Hebrews, that GOD gave more Laws to the Sons of Noah, which were not all recorded by Moses, as thinking it enough to include them afterwards in the peculiar Laws of the Hebrews. Thus it is plain from Levit. xviii. that there was an [11] antient Law against incestuous Marriages, tho’ not mentioned by Moses in its proper Place. Among those Commands of GOD to the Sons of Noah, they say [12] this was one, that not only Murders, but also Adulteries, Incests, and Rapines should be punished with Death, which the Words of Job seem to confirm;Job xxxi. 11. and even the Law of Moses gives Reasons for these capital Punishments, [13] which Reasons suit no less with other Nations, than with the Hebrews themselves; and particularly it is said of Murder,Lev. xviii. 24, 25, 27, 28. Ps. ci. 5. Prov. xx. 8. Numb. xxxv. 31, 33. that the Land cannot be cleansed but by the Blood of the Slayer. Besides, it would be absurd to think, that whilst the Jews were allowed to secure their publick and private Safety by capital Punishments, and to defend themselves by War, all other Nations and Powers should be denied the same Privilege; and yet that the Prophets should never have intimated to those Nations and Powers, that GOD condemned every Kind of War, and all Use of the Sword of Justice, as they frequently admonished them of other Sorts of Sins which they were guilty of.

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Nay on the contrary, is it not most evident, that since the Laws of Moses, with respect to criminal Matters, carry so visible a Character of the Divine Will, the other Nations would have done very well to take them for a Model? It is even probable, that the Greeks at least, and particularly [14] the Athenians, did so: Whence proceeds so great an Agreement of the old Attick Law, and from thence of the Roman [15] in the Twelve Tables, with the Hebrew Laws. This is enough to prove, that the Law given to Noah is not to be taken in that Sense which they imagine, who would thence conclude all Wars to be unlawful.

VI. Certain Cautions concerning the Question, whether War be contrary to the Law of the Gospel.VI. The Arguments brought out of the New Testament against War are more plausible; in examining which, I shall not suppose that, which others do, that there is nothing in the Gospel (except Points of Faith, and the Sacraments) but what is injoyned by the Law of Nature; for that, in the Sense that most Divines take it, I cannot think true.

1. This I freely grant, that there is nothing commanded us in the Gospel, which is not agreeable to natural Decorum; but I see no Reason to allow, that the Laws of CHRIST do not oblige us to any Thing but what the Law of Nature already required of itself.

2. And those, who are of that Opinion, are strangely embarrassed to prove, that certain Things which are forbid by the Gospel, [1] as Concubinage, Divorce, Polygamy, are likewise condemned by the Law of Nature. Indeed these are such that Reason itself inform susitis more Decent to refrain from them, but yet not such, as (without the Divine Law) would be criminal. The Christian Religion commands, that we should lay down our Lives one for another; but who will pretend to say,1 John iii. 16. that we are obliged to this by [2] the Law of Nature. Justin Martyr says, [3] To live only according to the Law of Nature, is to live like an Infidel.

3. Neither shall I follow them, who supposing another Principle very considerable, if it were true, pretend that CHRIST, in the Precepts he gives in the fifth and following Chapters of St. Matthew, only interprets the Law of Moses. For those Words so often repeated, imply something else, (You have heard it has been said to them of old: But I say unto you) which Opposition, as also the Syriack, and the other Translations, plainly declare, that the Word Veteribus must be render’d to, and not by them of old; as Vobis is to, and not by you. Now those of old are certainly the Contemporaries of Moses;Ex. xx. 13. Lev. xxiv. 21. Numb. xxxv. 16, 17, 30. Ex. xx. 14. Deut. xxiv. 1. Ex. xx. 7. Numb. xxx. 2. Lev. xxiv. 20. Deut. xix. 21. Lev. xix. 18. Ex. xxxiv. 11, 12. Deut. vii. 1. Ex. xvii. 19. Deut. xxv. 19. for what is there mentioned to be said to them of old, was not spoken by the Doctors of the Law, but by Moses himself, either in those very Words, or the same 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 thyself, but shall perform unto the Lord thine Oaths. An Eye for an Eye, and a Tooth for a Tooth, (that is, you may demand it in Justice). Thou shalt love thy Neighbour (that is, an Israelite) and hate thine Enemy, ( [4] that is, the seven Nations with whom they were forbid to make any League, or shew them any Mercy. To these are to be added the Amalekites, with whom the Hebrews are commanded to have an implacable War).

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4. But to understand the Words of CHRIST, we must carefully observe, that the Law delivered by Moses may be considered two Ways; either as to what it has in common with Laws merely human, that is,Heb. ii. 2. as it restrained the most heinous Crimes by the Fear of visible Punishments, and so maintained the Order of Civil Society amongst the antient Hebrews; in which Sense it is called The Law of a carnal Commandment, and The Law of Works.Heb. vii. 16. Rom. iii. 27. Or it may be considered as to what it has peculiar to Divine Laws, that is, as it also requires the Purity of the Mind, and some Acts, which may be omitted without the Fear of temporal Punishment;Rom. vii. 14. in which Sense it is termed A spiritual Law rejoicing the Soul, Psal. xix. 8. (which the Latins call the xviiith). The Doctors of the Law and Pharisees contenting themselves with that first Part of it, (the Carnal) despised the other, (the Spiritual) which yet is the more excellent, and neglected to teach it the People; which appears plainly, not only from the Books of the New Testament, but also from Josephus and the Rabbies.

5. But even as to what relates to this second (spiritual) Part, we must know, that tho’ the Virtues which are required of Christians, were recommended and injoined to the Hebrews, yet it was not [5] in so high a Degree, nor with so great an Extension; and in both these Respects CHRIST opposes his Precepts to those of the Antients: Whence it is plain, that his Words imply more than a bare Interpretation. These Remarks not only serve to the Matter in Hand, but also to many other Subjects, wherein the Authority of the antient Law might be misemployed.

VII. Arguments for the negative Opinion out of Holy Writ.VII. 1. Therefore, omitting those Arguments of less Weight, the first and chief Testimony, whereby we may prove that the Right of making War is not absolutely taken away by the Law of the Gospel, is that of St. Paul to Timothy, I exhort you, that above all Things, Prayers and Supplications,1 Epist. ii. 1, 2, 3. Intercessions and giving Thanks, be made for all Men; for Kings, and such as are in Authority, [1] 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. Hence we are taught three Things, First, That it is pleasing to GOD that Kings should become Christians. Secondly, That being converted to Christianity they still continue Kings; which Justin Martyr thus expressed, [2] We pray, that Kings and Princes may, together with their Royal Power, be found to have wise and reasonable Sentiments. And in the Book intitled, The Constitutions of Clement, the Church prays, [* χιστιαν τ τέλη, for Christian Magistrates. And Thirdly, That it is acceptable to GOD, that Christian Kings should contribute their utmost to the Quiet of others.

Rom. xiii. 4.But how? He explains This in another Place: He is the Minister of GOD to thee for Good; if thou do ill, be afraid, for he beareth not the Sword in vain; for he is GOD’s Minister, an Avenger to execute Wrath upon them that do Evil. Under the Right of the Sword, is figuratively comprehended every Sort of Punishment, [33] as that Expression is [3] also taken, sometimes among the Lawyers; but yet so, that the true [4] and effective Use of the Sword, which is the principal [5] Part, be not excluded. The second Psalm may not a little help to explain this Place; which Psalm, tho’ it was really verified in the Person of David, yet does it more fully and perfectly relate to CHRIST, as we may learn from Acts iv. 25. xiii. 33. and Heb. v. 5. Now that Psalm advises all Kings to kiss the Son with Reverence, that is, to shew themselves his Servants as Kings, as St. Austin rightly expounds it, whose Words relating to this Subject I shall here set down. [6] In this Kings serve GOD, according to the Divine Command, as they are Kings, when they promote Virtue, and discourage Wickedness in their Kingdom, not only in Things that have Relation to human Society, but also in what regards Religion. And in another Place, [7] How then do Kings serve the LORD in Fear, unless by prohibiting, and punishing with a religious Severity, all Transgressions of the Commandments of the LORD? For he serves GOD one Way as a Man, and another as a King. And a little after, Herein Kings serve GOD as Kings, when they do for his Service what they could not perform unless they were Kings.

(2.) Arg.2. That Place which I have before quoted in the thirteenth to the Romans, affords us a second Argument, where the higher Powers, such as Kings, are said to be of GOD; and the Apostle calls them likewise, the Ordinance of GOD: Whence he infers, that we ought to be subject to them, to respect and honour them, and that for Conscience sake; so that to resist them is to resist GOD himself. If by Ordinance we only understand what GOD only permits, as he does Acts that are sinful, then no Obligation would follow of Honour or Obedience, especially in regard to Conscience, and the Apostle had said nothing, when he so highly magnified and exalted this Power, but what he might have said of Thefts and Robbery. We must therefore understand this Power, as established with the Approbation of GOD: Whence it follows, (since GOD cannot will Things that are inconsistent) that this Power is not [8] repugnant to the Will of GOD revealed in the Gospel, and obligatory on all Men.

Neither does it prejudice our Argument, that the Sovereign Powers, at the Time when St. Paul wrote this, were not Christians.Acts xiii. 12. For first, this is not universally true; since Sergius Paulus, Vice-Praetor of Cyprus, had long before professed the Christian Faith; to say nothing of what is reported of the [9] King of Edessa, perhaps intermixt with some Falsities, but which seems to be founded on some Truth. Besides, the Question is not about the Persons, whether they were Christians or Infidels; but whether that Function, exercised by Infidels, contained in it any Thing contrary to Piety; which we say the Apostle denies, where he says it is [34] ordained of GOD, even at that Time, and therefore to be honoured and respected, with regard to Conscience itself, which, properly speaking, is under the Dominion of GOD only: And therefore, the Emperor Nero,Acts xvi. and King Agrippa, whom St. Paul so earnestly exhorted to turn Christians, might have become the Subjects of JESUS CHRIST, without being obliged to renounce, the one his Empire, or the other his Royalty; which two Sorts of Sovereignty cannot be conceived without the Right of the Sword, and the Power of making War. As then the antient Sacrifices were nevertheless holy, according to the Law, tho’ offered by wicked Priests; [10] so Civil Government is holy and sacred, tho’ administred by a wicked Person.

(3.) Arg.3. The third Argument is taken from [11] the Words of St. John the Baptist, who being asked by the Jewish Soldiers, (many thousands of whom served the Romans, as appears from Josephus, and other Writers) What they should do to flee from the Wrath to come, he did not bid them quit their Military Employment, which he ought to have done, if it had been GOD’s Will, but only to abstain from Extortion and Falshood,Luke iii. 14. and to be content with their Pay. But to these Words of the Baptist, which plainly allow of a Military Life, many object, that what the Baptist prescribed, did differ so much from what our Saviour commanded, that he seemed to preach one Doctrine and CHRIST another. But this I cannot agree to, for both John and our Saviour declare the Sum of their Doctrine in the same Terms, Repent ye, for the Kingdom of Heaven is at hand.Matt. iii. 2, 4, 17. And CHRIST himself says, the Kingdom of Heaven, (that is, the new Law, for the Hebrews used to call their Law by the Name of Kingdom) begun to suffer Violence from the Days of John the Baptist.Matt. xi. 12. Mark i. 4. Acts xi. 38. Matt. iii. 8, 10. Luke iii. 11. Matt. xi. 13. Mark i. 1. Luke i. 77. Matt. xi. 9. Luke vii. 26. — ii. 77. — iii. 18. Acts xix. 4. John i. 29. Matt. iii. 11. Mark i. 8. Luke iii. 16. John is said to preach the Baptism of Repentance for the Remission of Sins; so are the Apostles said to do in the Name of CHRIST. John required Fruits meet for Repentance, and threatens Destruction to those that did not bring them forth. He also requires Works of Charity above the Law. The Law is said to continue unto John; that is, from him a more perfect Law did begin. And the Beginning of the Gospel is reckoned from John. John is called greater than the Prophets, because he was sent to give Knowledge of Salvation to the People, and to preach the Gospel: Neither does John ever distinguish JESUS from himself by any Difference of Doctrine, (tho’ what John declared more generally and indefinitely, and by Way of Elements, CHRIST, the true Light, delivered clearly and distinctly) but only by this, that JESUS was the promised Messias, that is, a spiritual and heavenly King, who should give the Power of the HOLY GHOST to those that believed on him.

(4.) Arg.4. The fourth Argument is this, which seems to me of no small Weight. If it were not permitted to punish certain Criminals with Death, nor to defend the Subject by Arms against Highwaymen and Pyrates, there would of Necessity follow a terrible Inundation of Crimes, and a Deluge of Evils, [12] since even now that Tribunals are erected, it is very difficult to restrain the Boldness of profligate Persons. Wherefore if it had been the Design of CHRIST to have introduced a new Kind of Regulation, as was never heard of before, he would certainly have declared in most distinct and plain Words, that none should pronounce Sentence of Death against a Malefactor, or carry Arms in Defence of one’s Country, which we no where read that he did; for what is brought to this Purpose, is either very general or obscure. But Equity itself, and common Sense, teaches us to restrain Words that are general, and favourably to explain those that are ambiguous, and even to recede somewhat from the Propriety and common Acceptation of the Words, in [35] order to avoid that Sense which may bring along with it the greatest Inconveniencies. [13]

(5.) Arg.5. The fifth Argument may be this, that it cannot by any good Reason be proved, that the Laws of Moses, which regarded the Punishments of Crimes, were abolished, ’till the City of Jerusalem was destroyed, and with it the Form of the State, without any Hope of reestablishment. For neither is there in the Law of Moses any Term fixt to that Law; neither does CHRIST or his Apostles ever speak of the abolishing of that Law, unless so far as it may seem comprehended (as I said) in the Destruction of the Jewish Government. Nay, on the contrary, St. Paul says, that the High Priest (at that Time) was appointed to judge according to the Law of Moses.Acts xxiii. 3. Matt. v. 17. And CHRIST himself in the Preface to his Precepts, said, that he came not to destroy the Law, but to fulfil it; which is easily understood to refer to the ceremonial Part; for the Lines of a rough Draught are compleated, when the Picture appears in all its Perfection. But as to the Judaical Law, how can it be true, if CHRIST, as some imagine, abolished it at his Coming? And if the Obligation of that Law continued as long as the Jewish State subsisted, it follows, that the Jews, even such as turned Christians, if [14] they were called to the Magistracy, could not avoid it, nor judge [15] otherwise than Moses had prescribed.

Having thoroughly consider’d all Things, I cannot indeed find the least Reason, why any pious Man, that heard our Saviour pronounce those Words, should take them in any other Sense. I own, that before the Time of the Gospel, some Things were tolerated (either as to outward Impunity, or even in regard to Conscience, which I have not now Occasion or Leisure strictly to examine) which CHRIST did not allow to his Followers; as, for Instance, to put away a Wife for every Offence, and a Person injured to seek Reparation by Course of Law: But tho’ between CHRIST’s Precepts and those Permissions, there is a certain Difference, yet there is no Contradiction: For he that keeps his Wife, and he that parts with his Right of taking Vengeance, does nothing contrary to the Law, but acts most agreeably to [16] the Intention of the Law. It is quite otherwise in a Judge, whom the Law does not allow, but command, to punish a Murderer with Death; and if he neglect it, he shall be guilty before GOD. If CHRIST had forbid such a [36] Person to put a Murderer to Death, he would have ordered something directly contrary to the Law, he would have abolished the Law.

(6.) Arg.6. The sixth Argument is taken from the Example of Cornelius, the Centurion, who received the HOLY GHOST (an infallible Sign of Justification) from CHRIST, and was baptized into the Name of CHRIST, by the Apostle St. Peter, yet we no where find that he laid down his Commission, or was ever advised to it by St. Peter. But some may answer, that being instructed in the Christian Religion by St. Peter, he may be supposed at the same Time to have been exhorted to quit his Employment. Indeed if it were certain, and could be proved, that War was forbid among the Precepts of CHRIST, they would say something to the Purpose; but since that appears no where else, it would have been proper to have said something of it, at least in this Place, that future Ages might not be ignorant of the Rules of their Duty. Neither does St. Luke use (where the Quality of the Persons required a special Change of Life) to pass such a Thing over in Silence, as we may see in several Places, particularly Acts xix. 19.

(7.) Arg.7. The seventh Argument like to this, is taken from the Example of Sergius Paulus, which I have already alledged; for in the Account of his Conversion, there is no Mention made of his quitting his Government, or of his being advised to do it. Now Silence, in regard to Things which it was natural for one to mention, and very necessary not to omit, implies, as I have just said, that they never were.

(8.) Arg.8. The eighth Argument is drawn from the Conduct [17] of St. Paul, when he understood that the Jews lay in Wait for him; he immediately acquainted the Commander of the Roman Garrison with it, and when the Commander had sent Soldiers to convoy him safe to Caesarea, he did not refuse it, neither did he in the least insinuate, either to the commanding Officer or the Soldiers, that it was displeasing to GOD to repel Force with Force; and yet this is that St. Paul, who neglected no Opportunity himself, of warning Men of their Duty, or to blame the Neglect in others, 2 Tim. iv. 2.

(9.) Arg.9. The ninth Argument is, because the proper End of any Thing that is honest and obligatory, must also be honest and obligatory: To pay Tribute is honest; and also a Precept obliging the Conscience,Rom. xiii. 3, 4, 5, 6. as St. Paul expresses it; and the End of Tribute is, [18] to enable the Sovereign Powers to protect the Good, and restrain the Wicked. [19] Tacitus speaks appositely to this Purpose, Nations can have no Peace without Arms, no Arms without Pay, and no Pay without Taxes. To which agrees that of St. Austin, [20] For this Cause we pay Tribute, that Soldiers may have Money to buy them Necessaries.

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(10.) Arg.10. The tenth Argument is taken from that Place of the Acts, where St. Paul pleads thus, If I have wronged any Man, or done any Thing worthy of Death, I refuse [21] not to die. Whence I conclude, that St. Paul did believe, that even after the publishing of the Evangelical Law,Acts xxv. 11. there were some Crimes which Equity allowed, and even required, to be punished with Death: Which also St. Peter teaches.1 Pet. ii. 19, 20. But if it had then been GOD’s Will, that capital Punishments should be no longer used, St. Paul might indeed have cleared himself; but he ought not to leave such an Opinion in the Minds of Men, as if to punish Offenders with Death had been now no less lawful than formerly. But having proved that capital Punishments were justly inflicted after the Coming of CHRIST, I think it also proved, that some Wars may be lawfully made, as against a Multitude of armed Offenders, who are to be overcome by Arms, [22] ] before they can be brought to a Trial. Indeed the Forces of Criminals, and the Boldness wherewith they resist, may have some Weight, in considering whether it be proper to pursue them with the utmost Rigour; but still that lessens nothing of the Right itself.

(11.) Arg.11. The eleventh Argument is, that [23] in the Revelation of St. John, some Wars of the Righteous are foretold, with manifest Approbation, Chap. xviii. 6. and elsewhere.

(12.) Arg.12. The twelfth Argument may be this, that the Law of CHRIST did only abolish the Law of Moses, in regard to those Things which separated the Jews from the Gentiles; but what Things were accounted honest by the Law of Nature, or by the tacit Consent of civilized Nations,Eph. ii. 14. it was so far from abrogating, that it comprehends them under the general Precept to think on every Thing that is honest and vertuous. Now the Punishment of Crimes, and repelling Injuries by Arms, are by Nature reputed laudable, and referred to the Virtues of Justice and Beneficence.Phil. iv. 8. 1 Cor. xi. 14. And here, by the by, we may observe the Error of them, who pretend that the Israelites had a Right to make War, only because GOD had given them the Land of Canaan. Indeed this is a just Cause, but not the only one. For even before those Times, holy Men did make War by following the Light of Reason; and also the Israelites themselves afterwards, upon other Occasions, as David, for the affronting of his Ambassadors. Besides, what every man possesses, by Vertue of human Laws, is not less his own, than if GOD had (immediately) given it to him; and that Right is not taken away by the Gospel.

VIII. The Arguments out of Scripture for the Affirmative answered.VIII. Let us now see the Reasons for the contrary Opinion, that the pious Reader may more easily judge which are the most weighty.

1. First they alledge the Prophecy of [1] Isaiah, who foretold, That the Nations should beat their Swords into Plow-Shares, and their Spears into Pruning Hooks.(1.) Arg. Isa. ii. 4. Nation shall not lift up Sword against Nation, neither shall they learn War any more. But this Prophecy is to be understood, either conditionally, as many others are, as that should be the State of Affairs, if all Nations would [2] submit to the Law of [38] CHRIST, and live up to it, whereunto there should nothing be wanting on GOD’s Part; for it is certain, if all were Christians, and lived like Christians, there would be no Wars: Which [3] Arnobius expresses thus, If all Persons who look upon themselves as Men, not so much from the Shape of their Bodies, as because they are endowed with Reason, would lend an Ear to his salutary and peaceable Lessons, and not presumptuously follow their own Fancies rather than his Exhortations, the whole World would long since have enjoyed profound Peace, and lived in perfect and indissoluble Union. Iron would have been employed for gentler Purposes, and converted into less dangerous Instruments than what it has hitherto served for. And [4] Lactantius thus, What would be the Consequence, if all Men would unite in Concord? Which certainly might be done, if banishing their deadly and impious Rage, they would resolve to live innocently and justly. Or this Place is to be understood literally; and then, it is plain that this Prophecy is not yet fulfilled; but that the Accomplishment of it, and of the general Conversion of the Jews, is yet to be expected. But take it which Way you will, there can be nothing hence inferred against the Lawfulness of War, as long as there are those who will not suffer others to live in Quiet, and who insult such as love Peace.

Several Arguments are drawn from the fifth of St. Matthew, to judge of which it is necessary, that we remember what was said a little before, viz. If CHRIST had intended to have abolished all capital Punishments, and the Right of (making) War, he would have done it in most plain and exact Terms, on Account of the great Importance and Novelty of the Thing; and so much the more, because none of the Jews could imagine but that the Laws of Moses, concerning Judgments and other political Affairs, ought to preserve their Force in regard to the Jews, as long as their Government subsisted. After this general Remark, let us examine these Places in order.

(2.) Arg.2. The second Argument brought to defend their Opinion is out of those Words. You have heard it has been said, an Eye for an Eye, and a Tooth for a Tooth; but I say unto you, resist not Evil,Ex. xi. 13. Matt. v. 38, 39. Acts vii. 27. (לרשע which answers to the Greek Word τ δικοντι him that injures thee); but if any Man strike thee on the one Cheek, turn to him the other also. From hence some infer, that no Injury is to be repelled or revenged, either publickly or privately; but this the Words do not imply; for CHRIST does not here speak to Magistrates, but to those that are injured; nor of all Injuries neither, but of slight ones, as a Box on the Ear, for the Words following limit those that go before, however general they may at first appear. So in the following Precept, If any Man will sue thee at the Law, and take away thy Coat, let him have thy Cloak also. [5] Our Saviour does not forbid absolutely to have Recourse to Law, or to take Arbitrators in order to decide a Difference.1 Cor. vi. 4. This is evident from the Interpretation of St. Paul, who does not prohibit every Kind of Law-Suit, but only would have Christians not go to Law with one another before the Heathen, [39] and that from the Example of the Jews, amongst whom it was a received Maxim, that He that brings the Cause of an Israelite before Strangers, profanes the Name of GOD; but CHRIST, to exercise our Patience, would not have us dispute for Things that may be easily recovered, as a Coat, or a Cloak with a Coat, if one run a Risque of being deprived of both; nor prosecute our Right according to Law, however well founded it may be. Apollonius Tyanaeus [6] said, It was not like a Philosopher to sue for a little Money. The Praetor (said Ulpian [7] ) does not disapprove the Action of a Man, who had rather lose his Substance than be engaged in a Multiplicity of Law-Suits, for the Recovery of it; for this Aversion to Suits of Law is not to be condemned. What Ulpian here says to be approved of by good Men, is what CHRIST himself commands, chusing the Subject of his Precepts from Things most honest and commendable: But we cannot justly infer from hence, that a Parent or Tutor ought not to defend by Law, when he is forced to it, what his Child or Pupil cannot subsist without. For a Coat or Cloak is one Thing, and one’s whole Maintenance another. In Clement’s Constitutions, it is said of a Christian, if [8] he have a Suit depending, Let him endeavour to make it up, tho’ it be somewhat to his Loss. What therefore uses to be said of moral Things in general, may be applied here, that they do not consist in an indivisible Point, but have in their way a certain Extension.

So in that which follows, If any Man shall compel thee to go with him one Mile, go with him two: Our Lord did not say a hundred Miles, which might draw one too far from his necessary Business, but one, and if occasion be, two, which is only a kind of a Walk, and the Trouble and Hindrance occasioned by it almost nothing at all. The Meaning then is, that in Things which will not incommode us much we must not insist with Rigour upon our Right; but rather [9] yield more than is desired, that our [10] Patience and good Nature may be known unto all.

Our Saviour adds, Give unto him that asks of thee, [11] and from him that would borrow of thee, turn not away. If these Words were understood without any Restriction, it would indeed be very hard. He that takes not care of his own Family is worse than an Infidel, says St. Paul. Let us then follow the Explication of St. Paul, the best Interpreter of his Master’s Law,1 Tim. v. 8. who exhorting the Corinthians to Charity towards the Poor at Jerusalem, says, Not that others should be eased and you be burthened; but that by an Equality, [12] your Abundance should supply their Wants; that is, (to use Livy’s Words on a like Occasion) [13] That out of your Plenty,2 Cor. viii. 13. you may relieve the Necessities of others. As [14] Cyrus did towards his Friends, according to Xenophon. Let us use then the same Equity in explaining the Precept we have just now mentioned, viz. Resist not Evil; but if any Man, &c.

As the Law of Moses allowed the Liberty of a Divorce, to prevent the Cruelty of Husbands towards their Wives; so also to obviate all private Revenge, to which the Israelites were extremely inclined, it allowed the injured Person to avenge him [40] self, not indeed by his own Hand, but by the Law of [15] Retaliation before the Judge; which [16] the Law of the Twelve Tables afterwards established, He that breaks a Limb, let him suffer the like. As CHRIST required of his Disciples an higher Degree of Patience, he was so far from approving this Demand of Revenge in the Person injured, that he does not allow some Injuries to be repelled by Force, or Law. But what Sort of Injuries? Such as might be easily born; [17] not but that it is praise-worthy to suffer even grievous Injuries without demanding Satisfaction; but that he is contented with a more limited Patience: Therefore he proposes the Example in a Box on the Ear, which does not in danger Life, nor maim the Body, but only declares a certain Contempt of us, which diminishes nothing of our Merit. Seneca, [18] in his Book of the Constancy of a wise Man, distinguishes an Injury from an Affront, The former (said he) is by Nature more grievous, the other more light, and is hard to digest only for those that are very delicate; it offends, but does no hurt. Such is the Weakness and Vanity of our Minds, that some Men think nothing more insupportable; thus you will find a Slave, who had rather be scourged than take a Box of the Ear. And the same [* Author in another Place, An Affront is less than an Injury, which we may complain of, rather than revenge; and which the Laws have not judged worthy of any Punishment. So one in Pacuvius, [19] I easily bear an Injury, so it be without an Affront. So another in Caecilius, [20] I can easily bear Misfortune, if not the Result of an Injury done me; and even an Injury, unless accompanied with an Affront. And in Demosthenes, [21] Blows, tho’ a Grievance to a free Man, are so chiefly when given as a Mark of Contempt. And the same Seneca a little lower says, [22] ] That Grief (arising) from an Affront, is a Passion moved by a Meanness and Narrowness of Mind, affected by some disobliging Action or Word.

Therefore in such a Case, CHRIST enjoins Patience; and lest any one should object the trite Proverb, [23] By bearing an old Injury you invite a new one; he adds, we should also rather [24] bear a second Injury than repel the first: Because from thence no Hurt comes to us, but what consists [25] in a false Imagination. To turn the Cheek, is a Hebraism for to bear a Thing patiently, as appears from Is. 1. 6. and Jer. iii. 3. To turn the Face, is used by [26] Tacitus and [27] Terence in the same Sense.

(3.) Arg.3. The third Argument is usually taken from the following Words in St. Matthew, You have heard it has been said, thou shalt love thy Neighbour, and hate thine [41] 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.Matt. v. 43, 44 There are some who think both capital Punishments and Wars repugnant to this Love and Kindness (to be shewn) to our Enemies and Persecutors. But that is easily answered, if we consider well the Words of the Law of Moses, to which our Lord opposes this Precept. The Hebrews were commanded to love their Neighbour; that is, those [28] of their own Nation; for so is the Word Neighbour to be understood, as appears from Lev. xix. by comparing the 17th Verse with the 18th. Nevertheless, the Magistrates were commanded to put to Death Murderers, and other notorious Offenders: Notwithstanding this likewise,Judges xx. 21 the eleven Tribes justly made War upon the Tribe of Benjamin for their horrid Crime. So also David, who fought the [29] LORD’s Battles, did recover by Arms the Kingdom promised him from Ishboseth.

But let the Word Neighbour more largely extend to all Men whatsoever; for all are received into common Grace; no People are now condemned by GOD to utter Destruction; yet what was formerly lawful against the Israelites, will still be as lawful against all Men: Since it was then commanded to love them, as it is now to love all Men. But if you urge, that under the Evangelical Law there is required a greater Degree of Love; this may also be granted; provided also it be allowed, that all are not to be [30] equally loved, but a Parent (for Instance) more than a Stranger: Thus also we are to prefer the Good of the Innocent to that of the Guilty, and a publick Good before a private one, by the Law of a well regulated Charity. Now out of Love to the Innocent, arise capital Punishments and pious Wars. See the moral Sentence which is in Prov. xxiv. 11. CHRIST’s Precepts then of loving and promoting the Good of every one, are to be obeyed, unless a greater and juster Love interpose: It is a known old Saying, [31] that To spare all is as cruel as to spare none. Besides, we are commanded to love our Enemies from the Example of GOD himself, who makes his Sun to rise upon the Wicked; but the same GOD does even in this Life punish some wicked Persons, and will do it very severely in the next. By which at the same Time are solved all the Arguments that use to be drawn from the Meekness that is prescribed to Christians:Ex. xxxiv. 6. Jonah iv. 2. For tho’ GOD is called gentle, merciful, long-suffering, yet Holy Writ does every where declare his Wrath against [32] obstinate Sinners, that is, his Design to punish them; and the Magistrate is appointed to be the Minister of this Wrath. Moses is famed for his extraordinary Meekness, yet he punished Offenders, and that capitally.Numb. xiv. 18. Rom. ii. 8. — xiii. 4. Matt. xxii. 7. 1 Cor. iv. 21. —v.5. 1 Tim. i. 20. We are frequently commanded to imitate the Mildness and Patience of CHRIST; but yet it was CHRIST who [33] grievously punished the rebellious Jews, and will condemn the Wicked at the Day of Judgment for their Crimes. The Apostles imitated their Master’s Gentleness, [34] yet they used the Power given them from GOD in the Punishment of heinous Sinners.

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The fourth Objection is taken from Rom. xii. 17. Render to no Man Evil for Evil: Provide Things honest in the Sight of all Men: If it be possible, as much as lies in you, live peaceably with all Men: Dearly beloved, [35] avenge not yourselves, but rather give Place unto Wrath; for it is written, Vengeance is mine, I will repay, saith the LORD: Therefore, if thine Enemy hunger, feed him; if he be athirst, 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 we may give the same Answer as to the former Passage; for when [36] GOD said, Vengeance is mine, I will repay, at the very same Time capital Punishments were in Use, and there were written Laws touching Wars. We find likewise an express Command to do Service to one’s Enemies, that is, to those who were of the same Nation;Ex. xxiii. 4, 5. without Prejudice however to the Right of inflicting capital Punishments, even on the Israelites themselves, and taking up Arms against them for just Reasons, as we have said above. Wherefore neither can the same Words now, or the like Precepts, tho’ taken more largely, be wrested to such a Sense; and the less, because the Division of Chapters was not made by the Apostles, or in their Time, but [37] much later, for the Convenience of Readers; and for the more easy quoting of the Places: And therefore, what now begins the thirteenth Chapter, Let every Soul be subject to the higher Powers, and what follows, was formerly joined to those Precepts of not taking Revenge.

But in this Discourse St. Paul says, that the publick Powers are GOD’s Ministers, and Revengers to execute Wrath (that is, Punishment) upon those that do Evil: Most plainly distinguishing thereby, between the Revenge that is exercised in GOD’s Stead, for the publick Good, and that ought to be referred to the Vengeance which GOD has reserved to himself; and that private Revenge which is intended only to satisfy the Resentment of an Injury, and which the A postle had a little before forbid. For if we would comprehend even that Revenge which is required for the Sake of the publick Good in that Prohibition, What would be more absurd than, when he had bid them abstain from capital Punishments, to add immediately, that the publick Powers were ordained by GOD to this End, to execute Punishment in GOD’s Stead?

(5.) Arg.5. The fifth Place, which some alledge is, Tho’ we walk in the Flesh, we do not war after the Flesh;2 Cor. x. 3. for the Weapons of our Warfare are not [38] carnal, but mighty, through GOD, to the pulling down of strong Holds, &c. But this Place makes nothing to the Purpose; for both what goes before, and what follows, shews that by the Word Flesh St. Paul there meant the weak State of his Body, as to outward Appearance, upon which Account he was contemned. To this St. Paul opposes his own Weapons, that is, the Power given to him as an Apostle, to punish the Refractory, which he used to Elymas the Sorcerer, the incestuous Corinthian, Hymenaeus, and Alexander. He therefore denies this Power to be carnal, that is, weak; nay, on the contrary, he affirms it to be most strong. What is this to the Right of capital Punishments, or of War? Nay, on the contrary, because the Church at that Time was destitute of the Assistance of the publick Powers, GOD raised up that miraculous Power for its Defence; which began to cease almost as soon as the Church had Christian Emperors; as the Manna ceased as soon as the Israelites were come into a fruitful Country.

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(6.) Arg.6. The sixth Place produced is, Put on the whole Armour of GOD, that ye may be able to stand against the Wiles of the Devil;Eph. vi. 11, 12. for we wrestle not against Flesh and Blood, (add only, after the Manner of the Hebrews) but against Principalities, &c. He speaks of that Warfare which Christians have, as Christians, not of that which they may have in common with other Men upon certain Occasions.

(7.) Arg.7. The seventh Place that is brought is, From whence come Wars and Fightings among you?James iv. 1, 2, 3. Come they not hence, even from your Lusts, that war in your Members? Ye lust, and have not: Ye envy, and desire to have, and cannot obtain: Ye fight and war, and 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. This contains no general Maxim, which absolutely condemns the Use of Arms; it only says, that those Wars and Fights with which the dispersed Jews were at that Time miserably harassed among themselves (part of which History we meet with in Josephus) did arise from wicked Causes; and that the Case is the same still, we know, and lament. That of Tibullus has a Meaning not unlike this Passage of St. James. [39] Gold is the Cause of so many Quarrels: There were no Wars whilst People drank out of wooden Goblets.

And we find it remarked [40] often in Strabo, that those Nations [41] lived most innocently, whose Diet was most simple. What [42] Lucan says is agreeable to this, — O profuse Luxury, that is never satisfied with small Provision! Ambitious desire of Dishes, every where searched for, by Sea and by Land! Vain Pomp of splendid Tables! Learn, how little is sufficient for Life; how small a Portion Nature is contented with. Rich and old Wines cannot raise the Sick; it is not necessary for them to drink out of Gold or Porcelain Cups. It is fair Water that restores Health. A good Fountain, together with Bread, is enough for Men. Wretched Mortals! Why then do they go to War? To which we may add that of [43] Plutarch, in The Contradictions of the Stoicks, There is no War among Men, but what arises from Vice; one from the Desire of [44] Pleasures, another from Covetousness, and a third from Ambition. [44] Justin commending the Manners of the Scythians, says, It were to be wished that the rest of Mankind practised the like Moderation, and were as scrupulous of grasping at other Men’s Goods and Possessions. We should not then see so many continual Wars carried on in all Ages, and in all Countries; nor would the Sword carry off greater Numbers than die of a natural Death. [45] Cicero says, Disorderly Passions give Birth to Hatred, Dissentions, Discord, Seditions, and Wars. [46] Maximus Tyrius, All Places are now full of War and Injustice; for irregular Passions are every where let loose, and inspire all Mankind with a Desire of adding to their Possessions. And [47] Jamblichus, For nothing but an excessive Concern for the Body, and the Passions which direct making an extravagant Provision for it, are the Causes of Wars,Matt. xxvi. 52 Seditions, and Quarrels; for Men engage in War, for the sake of procuring what is pleasant and advantageous to them. But what was said to St. Peter, All they that take the Sword, shall perish with the Sword; not belonging to War, in its common Acceptation, but properly to the Use of Arms between private Persons, (for CHRIST himself gives this Reason of his forbidding or neglecting his Defence,John xviii. 36. because His Kingdom was not of this World) shall be treated of in its [48] proper Place.

IX. The Opinion of the primitive Christians concerning this, examined.IX. Whensoever there is any Dispute about the Sense of what is written, the Practice afterwards established, and the Authority of the Judicious, uses to be of great Weight; which is also to be observed in Holy Scripture. For it is not probable, that the Churches, which were founded by the Apostles, should suddenly, or all at once, fall off from the Maxims which the Apostles had briefly given them in Writing, and more largely explained by Word of Mouth, or had even reduced into Practice. But they who condemn all Kind of War without Exception, use [45] to alledge some Passages of the primitive Christians; against which I have three Things to say.

First, That from those Passages nothing else can be gathered, than the private Sentiment of some Persons, not the common Opinion of the Churches. Besides, most of them who are cited, affected to be singular, and to teach something more sublime; such as, for Example, Origen and Tertullian, who are not always consistent with themselves. For the same Origen says, that Bees were given as a Pattern by GOD, of [1] the just and regular Method that Men ought to take in making War, when there is a Necessity for it. And the very same Tertullian, who in another Place seems to disapprove of capital Punishments, said, [2] No Body denies but it is [3] good to punish the Guilty. And he is at a Stand about Wars; for in his Book Of Idolatry, he [4] says, The Query is, Whether the Faithful may be allowed to take up Arms; and whether military Persons may be admitted into the Christian Church? And in that Place, he seems to incline to that Opinion which is against War. But in his Book Of the Soldier’s Crown, after he had made some Reflections against War, he presently distinguishes between them who were Soldiers before their Baptism, and those who list themselves after Baptism. [5] Their Condition (says he) is plainly different, who were Soldiers before their Conversion to the Faith; as those whom John admitted to Baptism, or as those most pious Centurions,Matt. viii. 9. Acts x. one of whom CHRIST approved of, and another St. Peter instructed: [6] Provided that having embraced the Faith, and being sealed (by Baptism) they either presently quit their Employment, as many have done; or be particularly careful that they do nothing to offend GOD. He then was sensible that they continued Soldiers after Baptism, which certainly they would not have done, if they had understood War to have been forbidden by CHRIST; no more than Soothsayers, Magicians, and [7] other Professors of unlawful Arts, were allowed after Baptism to practise their Art. In the same Book, commending a certain Soldier, and him a Christian, he cries out, [8] O Soldier, glorious in GOD!

The second Observation is, That Christians did often disapprove or avoid War, on account of the Circumstances of the Times, which would scarce permit the bearing of Arms, without committing some Actions contrary to the Laws of Christianity. In Dolabella’s Letter to the Ephesians, which is extant in Josephus, we find the Jews [9] desire to be exempted from all military Expeditions, because mixt with Strangers, they could not well perform the Rites of their own Law; and because they were forced on the Sabbaths to bear Arms, and make long Marches; and the same Historian tells us, that for the same Reasons the Jews got Leave [10] of Lentulus to [46] be discharged; and in another Place he relates, when the Jews were commanded to depart from the City of Rome, [11] some listed themselves Soldiers, others were punished for refusing to do it in Reverence to the Laws of their Country; namely for the Reasons mentioned before; to which there was sometimes added a third, because they would be obliged to fight against their own Countrymen, but to bear Arms against their Nation was unlawful; that is, when their Countrymen were in danger for observing the Laws of their own Country. But as often as the Jews could avoid these Inconveniencies, they served in the Wars, even under foreign Kings, but yet [12] continuing to observe the Laws of their Country, and to live according to them, which they first stipulated, as Josephus testifies. Very like to these Dangers were those, which Tertullian objects to the Men of the Sword in his Times; as in his Book of Idolatry, [13] The Oath of Fidelity to GOD, and that to Man, the Banners of CHRIST, and those of the Devil, are things inconsistent with one another: Because the Soldiers were obliged to swear by the Pagan Gods, Jupiter, Mars, and others. In his Book of the Crown of a Soldier, he says, [14] Shall he (a Christian) stand Centry before the Temples which he has renounced; and shall he sup where he is forbid by the Apostle? Shall he guard those (Demons) by Night, which he has exorcised in the Day? And afterwards, [15] How many other Military Functions are there, which ought to be looked on as Sins?

The third Observation is this, that the Christians of the Primitive Times aspired with so much Ardor to the highest degree of Perfection, that they often took the divine Counsels for Precepts of an indispensible Obligation. Christians (says [16] Athenagoras) do not sue at Law those that rob them. Salvian [17] said it was commanded by CHRIST that we should rather abandon those things that are contested than engage in a Law Suit. But this taken so generally, [18] seems to be design’d rather [skips to p. 48] as good Counsel, [19] and tending to a more sublime Life, but not as an absolute Precept. Thus many of the Primitive Fathers condemn’d [20] all Oaths, without any Exception; whereas [21] St. Paul himself did swear in Matters of Consequence. A Christian in Tatian said, I refuse the Pretorship. In Tertullian, A Christian is not [22] ] ambitious of the Aedile’s Office. Lactantius maintains, that a just Man (such he would have a Christian to be) should not make War; [23] but at the same time says, that he should not go to Sea. How many of the Primitive Fathers dissuade Christians from second Marriages? All which, as they are commendable, excellent, and highly pleasing to GOD, so they are not required of us by the Necessity of any Law. These Remarks will suffice to answer all Objections founded on Ecclesiastical Antiquity.

X. [1] Now to confirm our own Opinion, first we want not Writers, and even more ancient ones than those that are opposed to us, who believed that the Practice of inflicting capital Punishment, and that of making War, the Innocence of which depends on the Justice of the former, are not inconsistent with Christianity: Clemens Alexandrinus says, that a Christian, if he be called to the Government, should be [49] (as Moses) a living Law to the Subjects, reward the Good, and punish the Bad. And in another Place, [2] describing the Habit of a Christian, he says, it would become him to go barefoot, unless he should happen to be a Soldier. In the Constitutions, intitled, The Constitutions of Clemens Romanus, we [3] read, Not that all Killing is unlawful, but only that of the Innocent; provided that this Right of putting to Death be reserved to the Magistrate alone.

But setting aside private Opinion, let us come to the publick Authority of the Church, which ought to be of the greatest Weight. I say then, that Soldiers were never denied Baptism, or Excommunicated by the Church, (because they were Soldiers) which yet ought to have been done, and would have been done, if the military Profession had been repugnant to the Conditions of the new Covenant. In the a foresaid Constitutions, the same Writer treats of those who formerly used to be admitted to Baptism, and those who used to be rejected, [4] Let a Soldier that desires to be baptized, be exhorted to abstain from Wrongs and Oppressions, to be content with his Pay: If he complies with these, let him be admitted. Tertullian in his Apology, speaking in the Person of Christians, says, [5] We go to Sea, and fight together with you. He had said a little before, [6] We are but of a few Days standing, and yet we have filled all your Empire, Islands, Castles, Towns, Councils, and your very Armies. In the same Book he had [7] told that Rain had been obtained in favour of the Emperor Marcus Aurelius, by the Prayers of his Christian Soldiers. In his Book Of a Crown, he says, that the Soldier who had thrown away the Garland, was more brave than the rest of his Fellows; and he [8] informs us, that he had many Christian fellow Soldiers.

We may add, that some Soldiers that had suffered Torments and Death for the Sake of CHRIST, received from the Church the same Honour with other Martyrs; among whom are recorded [9] three of St. Paul’s Companions: Cerialis, who suffered Martyrdom under Decius; Marinus, under Valerian; fifty under Aurelian; Victor, Maurus, and Valentinus, a Lieutenant-General under Maximian: About the same Time, Marcellus the Centurion, Severian under Licinius. Cyprian concerning Laurentius and Ignatius, both Africans, says, [10] They also were once Soldiers in the Armies of this World, but were truly the Soldiers of GOD in the spiritual Warfare, whilst they vanquished the Devil by the Confession of CHRIST, and obtained by their Martyrdom, the Palms, and glorious Crowns of the LORD. Hence it is plain, what the common Opinion of the primitive Christians was concerning War, even before the Emperors were Christians.

If the Christians in those Times did not willingly appear at [11] Trials for Life, it ought not to be thought strange, since for the most part Christians themselves were to be tried. Besides, the Roman Laws in other Things, were more severe than Christian Lenity could allow of; which sufficiently appears in the single Instance of the [12] Silanian Decree of the Senate. But yet, after that Constantine embraced, [50] and begun to promote, the Christian Religion, capital Punishments did not there upon cease. Nay, Constantine himself, among other Laws, made also this [13] of sowing up Parricides in a Leather Sack; tho’ otherwise he was so very mild towards Criminals, that he is [14] blamed by many Historians, for too much Indulgence. He had also a great many Christians in his Army, (as History informs us) and caused the Name of CHRIST to be put [15] on his Standard: From that Time also the military Oath was changed to that Form extant in Vegetius, [16] By GOD, and CHRIST, and the HOLY GHOST, and the Majesty of the Emperor, which, next to GOD, ought to be loved and reverenced by Mankind. Neither at that Time, among so many Bishops, some of whom had suffered very severely for Religion, do we read of so much as one, that exhorted Constantine not to put any Criminal to Death, or to engage in any War, or that dissuaded the Christians from serving in Wars, out of Fear of GOD’s Wrath; tho’ most of those Bishops were very strict Observers of Discipline, and far from dissembling those Things, which related either to the Duty of the Emperors, or other Persons: Such was St. Ambrose, in the Time of Theodosius, who in his seventh Sermon speaks thus, [17] To go to War is no Fault; but to do it purely for Plunder is a Sin. And in his Offices, [18] Valour, which either defends our Country by Arms from Barbarians, or protects the Weak at Home, or our Companions from Robbers, is compleat Justice. This Argument seems to me of so great Weight, that I will seek for no other.

I am not ignorant, that Bishops, and other Christian People, have [19] often interceded in favour of Criminals, especially such as were condemned to Death, and that Custom was introduced, that they who [20] took Sanctuary in a Church, should not be delivered up, but upon promise to save their Lives; and that about Easter, [21] those who were committed to Prison should be released. But he that carefully considers all these and such like Things, will find that they are only the Effects of Christian Goodness, which eagerly embraces all Opportunities of Mercy; and not [51] the Consequences of a fixed and settled Opinion, which condemns in general all capital Punishments; and therefore, those Favours were not universal, but limited to certain Times and Places, and even the Intercessions themselves were moderated [22] ] with certain Exceptions.

Here some object against us, the 12th Canon of the Council of Nice, which runs thus, [23] Whoever being called by Grace, have at first shewed their Zeal and Faith, and quitted their military Employment; but have afterwards returned like Dogs to their Vomit; so that some shall give Money, and make Interest, to be taken into the Service: They shall lye prostrate (in the Church) for ten Years, after having been for three Years bare Hearers (of the Word). But in regard to all these, it must be observed what Disposition they are in, and in what Manner they do Penance. For whoever, by Fear, by Tears, by Patience, and by good Works, testify the Sincerity of their Conversion, these fulfilling the appointed Time of Hearing, shall at Length assist at publick Prayers, and afterwards it shall be lawful for the Bishop to treat them somewhat more favourably. But whosoever shall look on their Punishment with Indifference, and shall think the Form of their entering into the Church to be sufficient for their Conversion, these shall fulfil the whole appointed Time. The very Term of thirteen Years Penance, sufficiently declares, that the Matter in Question is not about a small or doubtful Sin, but a heinous and incontestable Crime. The Crime here meant, was undoubtedly [24] Idolatry; for the Mention which was made of the Times of Licinius, in the 11th Canon immediately preceding, ought to be supposed tacitly repeated here, as the Sense of the following Canon often depends on the former. See for an Instance the 11th Canon of the Eliberan Council. But Licinius, (as Eusebius [25] informs us) dismissed those Soldiers from the Service, who would not [26] sacrifice to their Gods: And the Emperor [27] Julian afterwards did the same; for which Reason we read Victricius, and others, quitted the military Profession for the Sake of CHRIST. And formerly 1104 Soldiers had done so in Armenia, under Dioclesian, of whom there is Mention made in the Martyrologies: And Menna and Hesychius, in Egypt. In the Time then of Licinius, many left the Service; of whom was Arsaceus, mentioned among the Confessors, and Auxentius, afterwards made Bishop of Mopsuestia. Wherefore those, who had resigned their military Employments from a Motive of Conscience, could not be admitted again under Licinius, but by renouncing the Christian Faith: Which Crime was by so much the greater, by how much their former Act had shewn them to have a superior Knowledge of the Divine Laws; therefore these Apostates were punished more grievously than those mentioned in the former Canon, who abjured Christianity, without any Danger of losing Life or Goods.

But to interpret this Canon generally of all War without Restriction, is absolutely against Reason. For [28] History plainly testifies, that they who had quitted their Posts under Licinius, and had not, during his Reign, returned to them again, because they would not violate their Christian Faith, were left to their Choice by Constantine, whether they would continue still discharged, or return to a military Life: Which doubtless many did.

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There are also some who object the Epistle of [29] Leo, which says, That it is against the Rules of Ecclesiastical Discipline, after having done Penance, to return to the Profession of Arms. But we must know, that in Penitents, no less than in Clergymen and Monks, there was required an eminent Degree of Sanctity, far above that of the Generality of Christians; that the extraordinary Purity of their Lives might serve as much to Edification, [30] as their bad Examples had before given Offence. Likewise in the most antient Customs of the Church, which, that they might be the more reverenced for their venerable Name, are generally called the Apostolical Canons: Canon the 82d it is decreed, That no Bishop, Priest, or Deacon, should follow the War, and retain at the same Time a Roman Employment, and the sacerdotal Function: For those Things that are Caesar’s, should be given to Caesar, and those that are GOD’s should be given to GOD. By which it appears, that those Christians who did not aspire to Ecclesiastical Offices were not forbid to follow Arms.

Moreover, they who after Baptism had served any Office, Civil or Military, could not be ordained Clergymen, as you may see in the Epistles of Syricius and Innocentius, and by the Council of Toledo. For Clergymen were not chosen [31] out of Christians of any Sort, but of them who had given Proof of a most strict Life. Besides, Ecclesiastics ought not to have been diverted from their Functions by [32] any other Care or Work, that required continual Application, such as the Service in War, and the Exercise of certain Civil Employments; for which Reason the first Canon provided, that no Bishop, Priest, or Deacon, should meddle in secular Affairs; and the 80th, that he should not be concerned in the administration of publick Affairs. And the sixth of the African Councils, that he should not act either as an [33] Attorney or an Advocate. So St. Cyprian holds it [34] unlawful for them to be appointed Tutors or Guardians.

But we have the express Judgment of the Church for our Opinion, in the first Council of Arles, which was held under Constantine; for the third Canon of that Council runs thus, As to those who throw away their Arms in Time of Peace, we have thought fit to exclude them from the Communion; that is, they who quit their military Employment, when there was no Persecution. For the Christians by the Word [35] Peace meant so, as appears from Cyprian and others. Let us add the [53] Example of the Soldiers under Julian, who had made so great Progress in Christianity, that they were ready to seal the Truth of the Gospel with their Blood; of whom St. Ambrose speaks thus, [36] The Emperor Julian, tho’ an Apostate, yet had under him Christian Soldiers, to whom when he said, March (against the Enemy) in defence of the State, they obeyed him; but when he said, March against the Christians, then they acknowledged the Emperor of Heaven. Such was the The bean Legion long before, which in the Reign of Dioclesian the Emperor were instructed in the Christian Religion, by Zabda, the thirtieth Bishop of Jerusalem, and afterwards left a memorable Example of Christian Constancy and Patience to all Ages, which I shall speak of hereafter.

Let it suffice, in this Place, to mention that Speech of theirs, which expresses accurately, and in few Words, the whole Duty of a Christian Soldier, [37] We offer you our Service against any Enemy whatever, yet hold it a most heinous Crime to embrue our Hands in the Blood of Innocents: They can act vigorously against the Impious, and the Enemies of the State; but have no longer Force, when the Business is to massacre the Pious, and our fellow Citizens. We remember that we took up Arms for the Defence of our Countrymen, and not against them. We have always fought for Justice, for Piety, for the Preservation of the Innocent; these have been hitherto the Recompence of our Dangers. We have fought with Fidelity. How should we present it to you, (the Speech is made to the Emperor) if we neglect it towards GOD? And St. Basil speaks thus of the antient Christians. [38] Our Ancestors never accounted Slaughters committed in War, as Murders, excusing them who fought for Virtue and Piety.

CHAPTER III↩

The Division of War into Publick and Private. An Explication of the supreme Power.

I. The Division of War into publick and private.I. The most general and most necessary Division of War is this, that one War is private, another publick, and another mixed; that is a publick War, which is made on each Side by the Authority of the [1] Civil Power. Private War is that which is made between private Persons, without publick Authority. Mixed War is that which is made on one Side by publick Authority, and on the other by mere private Persons. But let us first speak of private War, which is the most antient.

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That some Sort of private War may be lawfully waged, as far as respects the Law of Nature, I think has been fully proved by what I have said above, where it was shewn, that it is not repugnant to the Law of Nature, for any one to repel Injuries by Force. But perhaps some will think, that it is not lawful, at least since the establishment of publick Judges; for tho’ Courts of Justice are not from Nature, but human Appointment; yet, since it is much honester, and more conducive to the Peace of Mankind, that Differences should be decided by a third Person that is disinterested, than that every Man should be allowed to do himself Justice in his own Cause, wherein the Illusions of Self-Loveare much to be apprehended: Equity itself, and natural Reason, advise us to submit to so laudable an Institution. Paulus the Lawyer says, [2] That is not to be allowed to private Persons, which may be done publickly by a Magistrate; lest it be the Occasion of great Troubles. The Reason why Laws were invented, says King Theodorick, is, [3] that none should use Violence, and do himself Justice; for wherein does War differ from Peace, if private Persons determine their Disputes by Force? And Laws call that Force, whensoever [4] a Man would take that which he thinks is due, without having Recourse to a Judge.

II. That all private War, by the Law of Nature, was not unlawful, after the erecting of Tribunals of Justice, defended, with some Examples.II. Undoubtedly, the Liberty allowed before is now much restrained, since the erecting of Tribunals: Yet there are some Cases wherein that Right still subsists; that is, when the Way to legal Justice is not open. For the Law which forbids a Man to pursue his Right any other Way, ought to be understood with this equitable Restriction, that one finds Judges to whom he may apply. Now the Way to legal Justice may fail, either for some Time or absolutely. It fails for some Time only, when the Judge cannot be waited for [1] without certain Danger or Damage. It fails absolutely, either by Right or Fact: By Right, if a Man be [2] in Places not inhabited, as on the Seas, in a Wilderness, in desart Islands; and any other Places where there is no Civil Government. By Fact, if Subjects will not submit to the Judge, or the Judge refuse [3] openly to take Cognizance of Matters in Dispute.

What we said before, that even since Tribunals of Justice were erected, every private War is not repugnant to the Law of Nature, may be gathered from the Law given to the Jews,Ex. xxii. 2. where GOD thus speaks by Moses, If a Thief be found breaking up, (that is, by Night) and be smitten, that he dies, there shall no Blood be shed for him; but if the Sun be risen upon him, there shall be Blood shed for him. For this Law so accurately distinguishing the Cases, seems not only to import an Impunity; but also to explain the Law of Nature; and that it is not founded on any particular Divine Command, but on common Equity; whence we see that other Nations have followed the same Principle. That of the Twelve Tables is well known, which was undoubtedly taken from the [4] old Attick Law; [5] If a Thief commit a Robbery in the Night, and if a Man kill him, he is killed lawfully. So is he reputed innocent by the Laws of all known Nations, who by Arms defends himself against him that assaults his Life; which so manifest a Consent is a plain Testimony, that there is nothing in it contrary to the Law of Nature.

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III. Nor by the Evangelical Law, with an Answer to the Objections.III. There is more Difficulty concerning the Divine positive Law, more perfect than the Law of Nature, I mean the Gospel. I doubt not but GOD, who has more Right over our Lives than we ourselves, might have required Patience of us to such a Degree, that being brought privately into Danger, we ought rather to suffer ourselves to be killed, than to kill. But our Question is, Whether he has thought fit to tye us up so far? Two Places (of Scripture) are wont to be brought for the affirmative Opinion, which we have already explained, when we examined whether War in general was lawful.Matt. v. 39. Rom. xii. 19. But I say unto you, resist not him that doth Thee an Injury. Dearly beloved, avenge not yourselves; the Latin Version has it, Defend not yourselves. There is also a third Place, in those Words of CHRIST to St. Peter, Put up thy Sword into the Sheath;Matt. xxv. 52. Rom. v. 8, 10. for they that take the Sword shall perish by the Sword. Some also add the Example of CHRIST himself, who died for his Enemies.

Amongst the primitive Christians there are some, who indeed did not disallow of publick Wars, but believed Self-defence between private Persons to be unlawful. I have already cited some Passages of St. Ambrose, in favour of the Innocence of War: We find in St. Austin many more on that Subject, and more clear, which every Body knows. Yet the same St. Ambrose said, [1] Perhaps CHRIST therefore said to Peter, upon his shewing him two Swords, It is enough; as if it had been lawful to (the Time of) the Gospel, to make Use of the Sword; that the Doctrine of Equity might be in the Law, and the Perfection of Goodness in the Gospel. And in another Place, [2] A Christian, tho’ he be attacked by a Highwayman, is not to strike him again, lest in defending himself he offend against Piety. And St. Austin, [3] I do not dislike that Law, which allows those (Robbers, and other violent Aggressors) to be killed; but how I shall defend them who kill them, I know not. And again, [4] I do not approve of the Maxim of killing him, by whom one is apprehensive of being killed one’s self; unless he happen to be a Soldier, or publick Officer, so that he does not do it for himself, but for others, by Vertue of a lawful Authority. And it plainly appears, that St. Basil was of the same Mind, from his [5] second Epistle to Amphilochius.

But the contrary Opinion, as it is more common, so it seems to me more reasonable, that we are not obliged to such a Patience; for we are commanded in the Gospel to love our Neighbours as ourselves, not before ourselves; nay, when an equal Danger threatens us, we are not forbid to take Care of ourselves [6] before others; as we have already shewn from the Authority of St. Paul, explaining the Rule of Beneficence. Perhaps some one may object, and say, tho’ I may prefer my own Good before that of my Neighbour, yet this holds not in Things unequal; wherefore I ought rather to part with my own Life, than suffer the Aggressor to fall into eternal Damnation. But it may be answered, that the Person assaulted may also stand in Need of Time to repent, or may reasonably think so; and that the Aggressor may likewise before his Death have some Time left him to repent. [7] Besides in moral Judgment, that Danger ought not to be regarded [56] into which a Man throws himself, and from which he may deliver himself.

It is probable at least, that some of the Apostles wore Swords in Travelling, in the Sight, and with the Knowledge of our Saviour, during the whole Time they accompanied him, which [8] Josephus informs us, other Galileans also did in their Journey from their own Country to Jerusalem, (the Roads being much infested with Highwaymen) and who also tells us the same of the Essenes, the most quiet and peaceable of all Men. Hence it came to pass, that when CHRIST told his Disciples, such a Time was at hand, that they should sell even their Garments to buy Swords,Luke xxii. 36. the Apostles presently answered, that there were two Swords in their Company, and in that Company there were none but the Apostles. Besides, what CHRIST himself then said, tho’ indeed it was not a Precept, but a proverbial Speech, declaring that most grievous Dangers were at hand; (as the Opposition of the first Time, which was safe and prosperous, plainly shews, Ver. 35.) seems however to allude to a common Practice, a Practice which the Apostles looked on as innocent.

Matt. v. 39.Now, as [9] Cicero very rightly says, Why should it be permitted to wear a Sword, if it were not permitted to use it? But as to that Passage, Resist not him that injures you, it is not more universal than that which follows, Give to every one that asketh; which yet admits of an Exception, provided we do not too much incommode ourselves. Nay, there is nothing added to that Precept concerning giving, which intimates the Restriction; which is deduced only from the Rules of Equity; where as the Prohibition of Resistance has its Explication adjoined, by the Instance of a Box on the Ear; which shews that we are only obliged to suffer without resisting, when the Injury offered us is as slight as a Box on the Ear, or something like it; for otherwise it would have been more natural to have said, Resist not him that injures thee, but sacrifice thy Life rather than defend thyself by Force.

In the Words to the Romans, Avenge not yourselves, the Word κδικεν does not signify to defend but to revenge; as Judith i. 12. ii. 1. Luke xviii. 7, 8. xxi. 22. 2 Thess. i. 8. 1 Pet. ii. 14. Rom. xiii. 4. 1 Thess. iv. 6. And this the very Connexion of the Words plainly shews, for the Words going before are Render to no Man Evil for Evil; but this is the Description of Revenge, not of Defence. St. Paul also supports his Exhortation from that Place of Deuteronomy, Vengeance is mine, I will repay it: Where ’tis in the Hebrew לךכקם, which in its proper and natural Sense signifies Vengeance; and it is evident, Self-Defence cannot be meant in that Place.

Now what was said to St. Peter, does indeed contain a Prohibition to use the Sword, but not in the Cause of Defence; for he had no Need to defend himself: CHRIST had already said concerning his Disciples, Suffer these to go away;John xviii. 8, 9 and this, That the Saying might be fulfilled which he spake, of those thou hast given me I have left none. Nor was it necessary to defend CHRIST; for he would not be defended. Therefore he gives this Reason in St. John for forbidding it, The Cup which my Father hath given me,Ver. 11. shall I not drink it? And he says in St. Matthew, How then should the Scriptures be fulfilled, that thus it must be? St. Peter being then of a fiery Temper, thought of Revenge, and not of Defence. Besides, he would have taken up Arms against them who came with publick Authority, which whether it be lawful in any Case to resist, is a particular Question, that shall be handled in its proper Place. But what CHRIST also adds, All they that take the Sword, shall perish by the Sword; is either a proverbial Saying, which signifies, that Blood causes Blood; and therefore, that the Use of Arms is never free from Danger: Or, according to the Opinion of Origen, Theophylact, Titus, and Euthy [57] nius, it shews, that we should not in croach upon GOD’s Right, by anticipating the Vengeance which He, in his own due Time, will fully requite.Rev. xiii. 10 In which Sense precisely, it is said, He that killeth with the Sword, shall be killed by the Sword: Here is the Patience and Faith of the Saints. With which agrees that of Tertullian, [10] GOD is a fit Depository of thy Patience; if thou layest thy Injuries in his Hand, he is thy Avenger; if thy Losses, he is thy Surety; if thy Grief, he is thy Physician; if thy Death, he is thy Reviver: What ought not Patience to do, that has GOD for its Debtor? Moreover, in these Words of CHRIST there seems to be included, a Prophecy of those Punishments which the Sword of the Romans would take of the Blood-thirsty Jews.

As to the Example of CHRIST, who is said to have died for his Enemies, it may be answered; that all CHRIST’s Actions were indeed full of Virtue, that we may laudably imitate them, as far as ’tis possible; and that Imitation will certainly be rewarded; but yet they are not all such, as either result from an Obedience to an indispensible Law, or constitute a Law to us. For that CHRIST died for his Enemies, and the Ungodly, he did it not by any Law, but as it were by a special Covenant and Agreement with the Father;Isa. liii. 10. who, upon his doing it, did not only promise him the most exalted Glory, but also a People that should endure forever.Rom. v. 7. Besides, this Fact of CHRIST was, as it were, singular, of which we can hardly find any Example; as St. Paul shews: And CHRIST himself commands us to expose our Life to Danger, not for every one, but for our Brethren, [11] who profess the Christian Religion.1 John iii. 16.

In fine, the Passages quoted from Christian Doctors, either seem to give an Advice of extraordinary Perfection, rather than to establish an express Command; or contain only the Opinion of some private Persons. For in those most antient Canons called Apostolical, he only was to have been [12] excommunicated, who with the first Blow killed his Adversary in a Quarrel, through an [13] Excess of Passion. And St. Austin himself, whom we quoted before on the other Side, seems yet to approve [14] of this Opinion.

IV. Publick War divided into that which is solemn, and that which is not solemn.IV. Publick Wars are either [1] Solemn, according to the Law of Nations, or not solemn: What I here term Solemn is generally called Lawful, or made in Form, in the same Sense as a Will is termed Lawful, in [2] Opposition to a Codicil; or a Mar [58] riage Lawful, in Opposition of the [3] Cohabitation of Slaves: [4] Not because it is not allowed a Man, if he pleases, to make a Codicil, and a Slave to cohabit with a Woman; but because a Will, and a Marriage in Form, have [5] some peculiar Effects, by the Civil Law; which it is convenient to observe; for many, misunderstanding the Word Lawful, think all Wars are condemned as unjust and unwarrantable, to which that Epithet does not agree. Two Things then are requisite to make a War solemn by the Law of Nations. First, that it be made on both Sides, by the Authority of those that have the Sovereign Power in the State: And then, that it be accompanied with some Formalities; of which we shall treat in its proper Place. These Conditions are equally necessary, so that if the one be wanting, the other is needless.

But a publick War not Solemn, may be made both without any Formality, and against mere private Persons, and by the Authority of any Magistrate whatever. And indeed if we consider the thing without respect to the Civil Law, every Ma [59] gistrate [6] seems to have as much Right, in case of Resistance, to take up Arms in order to execute his Jurisdiction, as to defend the People committed to his Protection. But since by War the whole State is endangered, therefore it is provided, by the Laws of almost all Nations, that it be undertaken only by the Order or with the Approbation of the Sovereign. There is such a Law in [7] Plato’s last Book de Legibus. And by the Roman Law he was reckoned [8] guilty of High Treason, who without Commission from the Prince presumed to make War, list Soldiers, or raise an Army. And the Cornelian Law, [9] enacted by L. Cornelius Sylla, says, without Commission from the People. In the Code of Justinian, there is a Constitution extant, made by Valentinian and Valens, thus, [10] Let no Man use any Sort of Arms without our Knowledge and Permission. According to St. Austin, [11] natural Order and the Peace of Mankind require, that the Matter should be so regulated in every State. This Law however ought to be understood with some Restriction, according to the Rules of Equity, as every Maxim is, however general the Terms may be in which it is expressed.

Franc. Victoria, De Jure Belli, n. 9. Molin. Disp. c. 6. Idem Victoria. Bartol. in Leg. Ex hoc jure Digest. de Just. & Jure. Bartol. de Repraes. 3. principali ad secund. n. 6. Mart. Laud. de Bello, Qu. 2. Livy. 1. 24.First then, It cannot be doubted, but that it is lawful [12] for him who has any Jurisdiction, to reduce to their Duty, by his Officers, a Few who are disobedient; provided it requires not great Force to do it, nor endangers the State. Again, If the Danger be so pressing, that Time will not allow to consult the Sovereign, here also Necessity grants an Exception. [13] L. Pinarius, Governor of Enna, a Sicilian Garrison, presuming on this Right, upon certain Information that the Townsmen designed to Revolt to the Carthaginians, put them all to the Sword, and so preserved the Place. Franciscus de Victoria has pretended to transfer the [60] Right of taking up Arms to the Inhabitants of a Town, even without such a Case of Necessity, in order to have Satisfaction for those Injuries, which the Prince neglects to revenge; but his Opinion is justly rejected by others.

V. Whether a War made by the Authority of a Magistrate that has not Supreme Power be publick, and when?V. But Lawyers do not agree, whether in those Cases wherein it is allowed that inferior Magistrates have a Right to take up Arms, such a War ought to be called Publick; some affirm, and others deny it. Indeed, if by Publick we mean only that which is done by Vertue of a Magistrate’s Power, no doubt but such Wars are publick; and therefore, they that in such a Case resist the Magistrate, are liable to the Punishments due to those that rebel against their Superiors.Ayala de Jure Belli, I. 1. c. 2. n. 7. Sylv. verbo Bellum, n. 2. ibi. sufficit etiam. Innocent. C. olim de Restit. spol. n. 8 & C. sicut de Jure jurando, n. 5. Panormit. ib. Bartol. ad Leg. Hostes, D. de Captivitate. Livy, ubi sup. Victor. n. 29. Cajet. Sec. qu. 40. Art. 1. Sylv. verbo Bellum. p. 1. n. 2. Lorca, Disp. 50. n. 12. But if Publick be taken in a higher Sense, for that which is Solemn, as without Dispute it is often taken, they are not publick Wars; because, to render the Idea compleat in that Sense, there must be an express Resolution of the Sovereign, and several other Circumstances. It would be in vain to object, that in such Kind of Quarrels, the Goods of the Rebels [1] are taken, and given to the Soldiers. For that is not so peculiar to a solemn War, as that it may not also be done in any other.

But it may happen, that in a very large State, the inferior Powers [2] may have Authority granted them to begin a War; which, if so, then the War may be reputed as made by the Authority of the Sovereign Power: For he that gives to another the Right of doing a Thing, is esteemed the Author of it.

But it is more difficult to decide, whether, if such an Authority be not granted, the bare Conjecture of the Sovereign’s Will be sufficient? For my Part I cannot think it is: For it is not enough to foresee what the Will of the Sovereign would be, if he were consulted in this Case; but it must rather be considered, what a Prince would have done without being advised with, where the Matter will allow Time, and when the Affair is doubtful, if a Law were thereupon to be made: Fortho’the Reason which determines a Sovereign to require that his Orders should be waited for, may in such or such a Case [3] cease, when particularly considered; yet the same Reason, when taken generally, always subsists; which is, to prevent the Dangers to which the State would inevitably be exposed, if every Magistrate should pretend to judge of the Usefulness or Necessity of War.

Livy, 1. 38. Cap. 45, &c.Cneius Manlius was not therefore injuriously accused by his Lieutenants, because he had made War upon the Galatians, without the Order of the People of Rome; for tho’ the Galatians had supplied Antiochus with some Troops; yet, as Peace had been made with that Prince, it did not belong to Manlius, but to the People of Rome, to determine whether that Injury was to be revenged on the Galatians. [4] Cato would have had C. Caesar delivered up to the Germans, for making War on [61] them: I believe not so much in respect to Justice, as to free the City from the Fear of a Man that wanted to render himself absolute. For the Germans had assisted the Gauls, declared Enemies to the People of Rome, and therefore could have no Reason to complain of any Wrong done them, if the Romans had just Cause to make War against the Gauls. But Caesar ought to have been contented with beating the Germans out of Gaul, the Province appointed to him, and not to have pushed the War on the Germans in their own Country, especially when there was no Danger to be feared from thence, without first consulting the People of Rome. The Germans therefore had no Right to demand Caesar to be delivered up to them, but the People of Rome had to punish him; as the Carthaginians plainly answered the Romans, [5] The Question is not whether Hannibal has besieged Saguntum by publick Authority, or by his own private Authority? But whether in that he has done you an Injury, or not? For it is our Business to see whether our Subject has acted by Vertue of our Orders, or of his own Head. The only Point to be decided between you and us, is, whether the Thing could be done without Prejudice to our Treaties?

[6] Cicero defends what Octavius and Decimus Brutus did, who made War upon Antony of their own Heads. But tho’ it were plain that Antony had deserved it, [62] they should have staid for the Decision of the Senate and Roman People, Whether it were for the Benefit of the State to have dissembled the Matter, or to have revenged it; to have come to Terms of Peace, or to have recourse to Arms? For no Body is obliged to pursue his own Right, which is often attended with the Hazard of Damage.

But then further, tho’ Antony had been declared an Enemy, the Senate and People of Rome should have been allowed to consider, whom to employ as Generals to command in that War: Thus the Rhodians [7] answered Cassius, when he desired their Assistance by Vertue of a Treaty, that they would give it if the Senate ordered it. This Example, (of Cicero’s Apology) and many more that one may meet with, ought to teach us, not to approve of every Thing that is said by the most famous Authors: For they often reason according to the Circumstances of the Times, and often according to their own Passions; fitting, τ πέτ στάθμην, the Line to the Stone, or the Rule of Equity to Things, and not Things to the Rule of Equity. Wherefore we must endeavour in the Examination of such Matters, to use an unbiassed Judgment, and not rashly draw those Things into Example, which may be rather excused than commended, in which respect we often fatally err.

Since then, as we have said, a publick War ought not to be made, but by the Authority of the Sovereign; for the understanding both this Affair, and the Question concerning a Solemn War, and several other Things that depend upon it, it will be necessary to be thoroughly in formed, what this Sovereignty is, and in whom it resides; and so much the more, because learned Men in our Age, each of them handling this Argument rather according to the present Interest of the Affairs of his Country, than according to Truth, have made that which was of itself not very clear, much more perplexed.

VI. In what Things the Civil Power consists.VI. The Moral Power then of governing a State, which uses to be called the Civil Power, Thucydides describes by three Things, where he calls a State that is really so, [1] A Body that has its own Laws, Magistrates, [2] and Tribunals. Aristotle divides the Administration of the Government into three Parts. [3] 1. Consultation about publick Affairs. 2. The Establishment of Magistrates. 3. Judgments. To the first he refers the Power of making War or Peace, of concluding or breaking Treaties and Alliances, of enacting or repealing Laws; to which he adds, the inflicting of Death, Banishment, Confiscation of Goods, and the Punishment of Peculation and Extortion: That is, in my Opinion, the Judgments that relate to publick Crimes; whereas, in the third Class, by Judgments he means those that concern Crimes committed directly against private Persons. Dionysius Halicarnassensis chiefly takes Notice of these [4] three Things, 1 st, The Right to create Magistrates. 2 dly, The Right to [5] make Laws and repeal them. 3 dly, The Right of making Peace or War. In another Place he adds, the Right of Judging as a [6] [63] Fourth; and again, elsewhere, [7] the Right of Regulating the Affairs of Religion, and of calling Assemblies.

But if any one would divide it right, he may easily find all Things relating to it; so as that nothing may be wanting or superfluous. For he that governs a State, does it either by himself or by another. What he does himself respects either general Affairs or particular; what concerns general Affairs relates to the making or repealing of Laws; which extends as well to sacred Things (as far as he has a Right to meddle in them) as to profane. Aristotle calls this χιτεκτονικ, the [8] chief Art of Government. The Particular Affairs are either directly publick or private, but considered as they relate to the publick Good. Those which are directly publick, concern either certain Actions, as the making of Peace, War, Treaties, Alliances; or certain Things, as Taxes, and such like, in which is comprehended that [9] eminent Dominion which a State has over its Subjects, and their Goods, for the publick Use. Aristotle calls this Art by the general [10] Name Πολιτικ, Political, and by another (Βουλευτικ) that signifies the Art of Deliberating. Private Affairs are here the Differences of private Persons, so far as the Repose of the Society requires the Decision of them by publick Authority: And this Art Aristotle calls [11] Δικαστικ, Judicial. Those Things which are dispatched by another, are either done by Magistrates, or other Ministers, among whom we may put Embassadors. In these then consists the Civil Power.

VII. What Power is supreme.VII. That is called Supreme, whose Acts are not subject to another’s Power, so that they cannot be made void by any other human Will. When [1] I say, by any other, I exclude the Sovereign himself, who may change his own Will, as also his Successor, who enjoys the same Right,Cacheranus Decis Pedem. 139. n. 6. and consequently, has the same Power, and no other. Let us then see what this Sovereign Power may have for its Subject. The Subject then is either common or proper: As the Body is the common Subject of Sight, the Eye the proper; so the common Subject of Supreme Power is the State; which I have before called a perfect Society of Men.

We then exclude the Nations, who are brought under the Power of another People, as were the Roman Provinces; for those Nations are no longer a State, as we now use the Word, but the less considerable Members of a great State, as Slaves are the Members of a Family. Again it happens sometimes,Vict. de jure belli. n. 7. that divers People have one and the same Head, and yet each of those People make a compleat Society; for it is not in the moral Body, as ’tis in the natural, where one Head cannot belong to several Bodies; for there the same Person may be head, under a different Consideration, to several distinct Bodies; of which this is a certain Proof, [2] that upon the Extinction of the reigning Family, the Sovereign Power reverts to each People. So it may also happen, that several States may be linked together in a most strict Alliance, and make a [3] Compound, as Strabo more [4] than once calls it; and yet each of them continue to be a perfect State, which is observed both by others, and by [5] Aristotle in several Places.

The State then is, in the Sense I have just mentioned, the common Subject of Sovereignty. The proper Subject is one or more Persons, according to the Laws [64] and Customs of each Nation, πώτη χ, the first Power of the State, in Galen, Lib. 6. de placitis, Hyppoc. & Plat.

VIII. The Opinion refuted which holds that the supreme Power is always in the People, and the Arguments answered.VIII. 1. And here we must first reject their Opinion, [1] who will have the Supreme Power to be always, and without Exception, in the People; so that they may restrain or punish their Kings, as often as they abuse their Power. What Mischiefs this Opinion has occasioned, and may yet occasion, if once the Minds of People are fully possessed with it, every wise Man sees. I shall refute it with these Arguments. It is lawful for any Man to engage himself as a Slave to whom he pleases; as appears both by the Hebrew [2] and Roman Laws. Why should it not therefore be as lawful for a People that are at their own Disposal,Ex. xxi. 6. Instit. l. 1. tit. 3. de jure person. § 4. to deliver up themselves to any one or more Persons, and transfer the Right of governing them upon him or them, without reserving any Share of that Right to themselves? Neither should you say this is not to be presumed: For the Question here is not,Gail. de Arestis c. 6. n. 22, &c. what may be presumed in a Doubt, but what may be lawfully done? In vain do some alledge the Inconveniences which arise from hence, or may arise; for you can frame no Form of Government in your Mind, which will be without Inconveniences and Dangers. [3] Either you must take the one with the other, or [4] refuse both, says the Comedian.

But as there are several Ways of Living, some better than others, and every one may chuse which he pleases of all those Sorts; so a People may chuse what Form of Government they please: Neither is the Right which the Sovereign has over his Subjects to be measured by this or that Form, of which divers Men have divers Opinions, but by the Extent of the Will [5] of those who conferred it upon him.

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There may be many Causes why a People should renounce all Sovereignty in themselves, and yield it to another: As when they are upon the Brink of Ruin, and they can find no other Means to save themselves; or being in great Want, they cannot otherwise be supported. For if the Campani formerly, obliged by Necessity, submitted themselves to the Romans in this Form, [6] We yield up, O ye Senators, the People of Campania, and the City of Capua, our Fields, Temples, and all that we have, both Divine and Human, into your Power. [7] And some People, when they offered to submit themselves to the Power of the Romans, were refused, as [8] Appian relates: What hinders, but that any People may, after the [9] same Manner, yield up themselves to one powerful Prince. We read in Virgil,

Nec cum se, &c.

It may also happen, that a Master of a Family having large Possessions, will suffer no Body to dwell in them upon any other Condition; or one may have a great many Slaves, and make them free, upon Condition of acknowledging him for their Sovereign, and paying some Taxes: Of which we have many Instances. Tacitus speaks thus of the German Slaves, [10] Every one has his Dwelling, and governs his own House. The Master demands of him, as of a Farmer, a certain Proportion of Corn, Cattle, or Stuffs; after which the Slave is under no Obligation.

Besides, as Aristotle said, [11] some Men are naturally Slaves, that is, turned for Slavery. And some Nations also are of such a Temper, that they know better how to obey than to command; which the Cappadocians seem to have been sensible of, when being offered their Freedom by the Romans, they preferred living under a King,Strabo l. xii 815. Ed. Amst. (540 Paris.) declaring that they could not live without one. Thus Philostratous in the Life of Apollonius, [12] It is a Folly to pretend to set the Thracians, Mysians, and Getae at Liberty, since they don’t like it.Justin xxxviii. cap. 2.

Moreover, the Examples of other Nations, who for many Ages [13] lived happily under an arbitrary Government, may have influenced some. [14] The Cities under [66] Eumenes, says Livy, would not have changed [15] their Condition with any free State whatever. And sometimes the Situation of publick Affairs is such, that the State seems to be undone without Remedy, [16] unless the People submit to the absolute Government of a single Person; which many [17] wise Men thought to be the Case of the Roman Republick, in the Time of Augustus Caesar. For these and such like Reasons, it not only may happen, but often does, that Men submit themselves to the Government and Power of another, as Cicero [18] observes in his second Book of Offices.

But now as Property, or Right to the Goods of an Enemy, may be acquired by a lawful War, the Word Lawful being taken in the Sense I before mentioned, so may also Civil Dominion, or an absolute Right to command and govern the Enemy. What I have said, does not tend solely to maintain the Sovereign Authority of a Monarch, in Places where it is established; for there is the same Right, and the same Reason, for that of the Nobles, who govern a State exclusive of the People. Not even a Commonwealth was ever [19] found so popular, but that those who were very poor, or Strangers, the Women and young Folks, were excluded from publick Councils. There are also some People that have other [20] People [67] under them, who are no less subject to them than if they were under Kings. Whence arose that Question, [21] Are the Collatine People in their own Power? And when the Campani had delivered themselves up to the Romans, they [22] ] are said to have passed under a foreign Dominion. Liv. 1. 26. c. 24 xxxviii. c. 3. xxxii. c. 33. xlv. c. 25. As Acarnania and Amphilochia are said to have been under the Power of the Aetolians: Peraea and Caunus under that of the Rhodians. Pydna was given by Philip to the Olynthians. And those Towns which had been under the Spartans,Strab. xiv. Diod. xvi. when they were delivered from their Government, were called Eleutherolacones, (freed Laconians). The City Cotyora is said to have belonged to the People of Sinope, in Xenophon. Nice in Italy was adjudged to the People of Marseilles, in Strabo:Paus. I. iii. Exp. Cyri I. v. Strab. I. iv. —v. And the Island of Pithecusa to the Neapolitans. So we read in Frontinus, that the Town Calatia was adjudged to the Colony of Capua, Caudium to the Colony of Beneventum, with their Territories. Otho gave the Cities of the Moors to [23] the Province of Boetica, as it is in Tacitus. All which were absolutely void, if we allow, that the Right of Government is always at the Discretion and Will of the Persons governed.

But both sacred and profane History do testify, that there are some Kings who do not depend on the People, considered even as a Body, If thou shalt say, (said GOD to the Israelites) I will set a King over me.Deut xvii. 14. 1 Sam. viii. 4. 9 — ix. 16. —x.1. — xv. 1. 2 Sam. xv. 2 1 Kings iv. 1. Ps. cxliv. 2. Luke xxii. 25 And to Samuel, Shew them the Manner of the [24] King that is to reign over them. Hence the King is said to be anointed over the People; and over the Inheritance of the LORD; and over Israel. Solomon is called King over all Israel. So David thanks GOD, that he had subdued the People under him: And CHRIST says, The Kings of the Gentiles exercise Lordship over them. That Passage of Horace is well known,

[25] Regum timendorum, &c.

Formidable Kings have Dominion over their own People; but Kings themselves are subject to the Dominion of Jupiter.

Seneca thus describes the three Forms of Government, [26] Sometimes we have Reason to fear the People; sometimes the Persons of Credit in a Council, when the greatest Part of Publick Affairs are in the Hands of that Council; and sometimes one single Person, who is invested with the Power of the People, and over the People. Such are those who [27] Plutarch says, Not only command according to the Laws, but even command the Laws themselves. And in Herodotus, Otanes thus describes Monarchy, A Power to command as one pleases, without being accountable to any Person. And Dion Prusaeensis describes Royalty: So to govern, as not to give Account to another. Pausanias to the Messenians, opposes regal Government to that which must give Account of its Actions.

Aristotle says, there are some Kings who have the same Power as the whole Nation has in another Place over their Persons and Goods. So after the chief Men of Rome began to assume to themselves the Regal Power, the [28] People are said to have [68] bestowed all their Dominion upon them, and Power even over themselves; as [29] Theophilus expounds it. Hence is that Saying of Marcus Antoninus the Philosopher, [30] No one but GOD only can be the Judge of a Prince; and [31] Dion, B. 53. of such a Prince, He is free, Master of himself, and of the Laws, so that he does what he pleases, and what he doth not please he need not do. Such a Kingdom was that of the [32] Inachidae antiently in Greece at Argos; for in the Argive Tragedy of Suppliants, the People thus address the King in Aeschylus. [33] Sir, you are the City and the Publick; you are an independent Judge. Seated on your Throne, as upon an Altar, you alone govern all by your absolute Commands.

Quite otherwise than King Theseus himself speaks of the State of Athens in [34] Euripides, This City is not governed by a single Person, but it is a free City, where the People reign, by establishing new Magistrates every Year, as they think fit. For Theseus, as [35] Plutarch explains it, was only their General in Time of War, and the Guardian of their Laws; in other Things upon [36] a Level with the Citizens. Hence it comes to pass, that Kings who are accountable to their People, are said to be called Kings improperly. So after Lycurgus, and especially after the Ephori were constituted, the Lacedemonian Kings are said by [37] Poly- [69] bius, [38] Plutarch, and [39] Cornelius Nepos, to be Kings only in Name, and not in Reality; which Example others also followed in Greece. Thus [40] Pausanias says (of the Argives) to the Corinthians, The Argives, of old great Lovers of Equality and Liberty, have limited the Regal Power as much as possible; so that they have left to the Sons and Posterity of Cisus, nothing but the bare Name of King. So also Plutarch [41] observes, That the Senate had Power to judge Kings among the Cumaeans. [42] Aristotle denies that such Kingdoms constitute any proper Form of Government, because they do but make Part of an Aristocratical or Democratical State.

Nay, even among Nations, which are not always under Kings, we meet with some Instances of a Sort of temporary Monarchy, which is not subject to the People. Such was the Power of the [43] Amymones among the Cnidians, and of the Dictators [44] in the first Ages at Rome, from whom there was no Appeal to the People; whence a Dictator’s Edict was held as sacred, says [45] Livy. Neither was there any [46] Security but in a careful Obedience. And [47] Cicero, that the Dictatorship had possessed itself of the whole Force of the Royal Authority.

The Arguments which are brought for the other Opinion are easily answered.1 Arg. For first, Whereas it is alledged, that the Person constituting, must be superior to the Person constituted; it is only true in regard to those Powers whose Effect depends always upon the Will of their Author; but not in regard to a Power which, tho’ at first one was at Liberty to confer it or not, cannot afterwards be revoked by him that has once conferred it. As when a Woman chuses herself a Husband, whom she must from that Time always obey. Valentinian told his Soldiers, who had made him Emperor, when they desired something which he did not like, [48] It was indeed in your Power to chuse me your Emperor, O ye Soldiers! [70] But after you have chosen me, what you request depends on me, and not on you. It is your Duty, as Subjects, to obey, and mine to consider what is proper to be done. Neither is that true which is supposed, that all Kings are constituted by the People. The contrary sufficiently appears from the Examples I have already alledged, of a Master of a Family that receives Strangers into his Lands, upon Condition of Subjection; and of Nations reduced under one’s Dominion by the Right of War.

2 Arg.2. Another Argument they fetch from a Saying of the Philosophers, that all Government was ordained for the Sake of the Governed, not of the Governor; whence it follows, as they pretend, that the Governed are superior to the Governors, since the End is more noble than the Means. But neither is that universally true, that all Government was designed for the Sake of the Governed; for some Powers are of themselves established for the Sake of the Governor, [49] as that of a Master over his Slave: For there the Benefit of the Slave is extrinsical and accidental: As the Gain of the Physician has no Connection with the Art of Physick. There are other Powers that tend to the mutual Advantage of him who commands, and of him that obeys, as the Authority of a Husband over his Wife. So that there may be some Civil Governments established for the Benefit of the Sovereign, as the Kingdoms which a Prince acquires by the Right of Conquest; but are not therefore to be reputed Tyrannical; for Tyranny, as the Word is [50] now taken, implies Injustice. Some Governments may also respect the Benefit as well of the Governor as of the Governed; as when a People, unable to defend themselves, submit to the Dominion of a powerful Prince. I do not deny but that the Good of the Subject is the direct End proposed in the Establishment of most Civil Governments; and that it is true, which [51] Cicero said from [52] Herodotus, and Herodotus from [53] Hesiod, That Kings were constituted to administer Justice to the People. But it does not therefore follow, as they infer, that the People are superior to the King: For Guardianship was undoubtedly designed for the Benefit of the Pupil; and yet it gives to the Guardian [54] a Power over the Pupil. Neither does it avail, that a Guardian may be removed if he does not manage his Charge well; and therefore there ought to be the same Power over a King. For as to a Guardian, it is to be considered, that he has a Power superior to him: But in Civil Governments, because there must be some dernier Resort, it must be fixed either in one Person, or in an Assembly; whose Faults, because they have no superior Judge,Jer. xxx. 12. GOD declares, that he takes Cognizance of; who either punishes them, if there be a Necessity for it; or tolerates them, for the Chastisement or Trial of a People.

It is admirably said of [55] Tacitus, You must bear with the Luxury or Covetousness of Princes, as you do Barrenness, Storms, and the other Inconveniences of Nature: There will be Faults, as long as there are Men; but the Evil is not perpetual, and [71] is compensated by the Good which happens from Time to Time. And [56] M. Aurelius said, the Magistrates are to judge of private Persons, Princes of Magistrates, and GOD of Princes. There is a remarkable Place in Gregory of Tours, where that Bishop thus [57] addresses the King of France, If any one of us (O King!) should transgress the Bounds of Justice, he may be punished by you: But if you yourself should offend, Who shall call you to Account? When we make Representations to you, if you please, you hear us; but if you will not, who shall condemn you? There is none, but he who has declared himself to be Justice itself. Among the Maxims of the Essenes, Porphyry mentions this, [58] That it is not without a particular Providence of GOD, that the Power of Commanding falls to the Lot of some Persons. And [59] Irenaeus says excellently, By whose Orders [60] Men are born; by his Command also are Kings ordained, proper for them who are governed by them. We have the same Thought in [61] the Constitutions of Clement, You shall fear the King, knowing that he is chosen of GOD.

1 Kings xiv 6. 2 Kings xvii. 7, &c.Neither is it an Objection to what I have said, that we read of some People punished for the Offences of their Kings; for this does not happen, because they do not punish or [62] restrain their King, but because they seem to give, at least a tacit Consent to his Vices; or perhaps, without respect to this, GOD may make use of that Sovereign Power which he has over the Life and Death of every Man, to chastise their King, in regard to whom it is a great Punishment to lose his Subjects.

IX. Mutual Subjection refuted.IX. There are others, who fancy to themselves a reciprocal Dependence between the King and the People; so that, according to them, the People ought to obey the King whilst he makes a good Use of his Power; but likewise, when he abuses it, he becomes in his Turn dependent on the People. Now if by what they say, they mean only, that our Duty to our Sovereign does not oblige us to do any Thing manifestly unjust, they say but the Truth; but this implies no Right to compel [1] the King, or to command him. But suppose they had a Design to divide the Government with the King, (of which we shall say something [2] hereafter) there ought to be Bounds assigned to the Power of each Party, according to the Difference of Places, Persons, or Affairs, that the Extent of their respective Jurisdictions might be easily discerned.

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But the Goodness or Badness of an Action, especially in Civil Concerns, which are liable to frequent and intricate Discussions, are not fit to distinguish those Limits; from whence would necessarily follow the utmost Confusion; because, [3] under Pretence that an Action appeared Good or Bad, the King and People would each, by Vertue of their Power, assume to themselves the Cognizance of one and the same Thing; which Disorder, no Nation (as I know of) ever yet thought to introduce.

X. Cautions in judging of the Sovereign Power.X. Having confuted these Errors; it remains that we give some Cautions, in order to direct us how to judge rightly, to whom the Sovereign Power in every Nation belongs. Let this then be the first, That we be not deceived by the Ambiguity of Words, or the Shew of outward Things. For Example, Tho’ among the Latins, a Kingdom and a Principality are generally Opposites; as when Caesar said, [1] the Father of Vercingetorix had obtained the Principality of Gaul, but was slain for aspiring to the Royalty: And when Piso, in Tacitus, said, [2] that Germanicus was the Son of a Prince of the Romans, not of a Parthian King: And Suetonius, [3] that Caligula wanted but little of changing the Ornaments of a Prince into those of a King: And Maroboduus is said in [4] Velleius not to have been contented with the Principality, which he possessed with the Consent of those that depended on him, but ambitiously to have affected the Regal Power.

Yet we see these two Words often confounded together; for the Spartan Chiefs descended from Hercules, after [5] they were subjected to the Ephori, were yet called Kings (as we have [6] seen above). And in antient Germany, there were some Kings, who, as Tacitus says, [7] governed by the Deference paid to their Counsels, rather than by any Power they had of commanding. Livy relates, [8] that Evander reigned more by the Esteem People had for him, than by his own Authority. Aristotle, [9] and Polybius, [10] and Diodorus, [11] gave the Title of Kings to the Suffetes, or Judges of the Carthaginians: And Hanno is so called by Solinus. [12] Strabo [13] speaks of Scepsis in Troas, that having incorporated the Milesians into the State, it formed itself into a Democracy, leaving the Name of King to the Descendants of their antient Kings, and something of the Dignity.

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The Roman Emperors, on the contrary, after they exercised openly, and without any Disguise, a most absolute monarchical Power, were nevertheless called Princes. There are also some Republicks, where the chief Magistrates [14] are honoured with the Ensigns of Royalty.

On the other Side, the States of a Kingdom, that is, the Assembly of those who represent the People, divided into three Orders, according to Gunther, [15] Praelati, proceres, missisque potentibus Urbes. Prelates, Nobles, and Deputies of Towns. Those States, I say, in [16] some Places, are only, as it were, the King’s Great Council, by whose Means the Complaints of the People, which the Members of his Privy-Council often conceal from him, come to his Ear; and the King has nevertheless a Power afterwards to ordain whatever he thinks fit, in regard to the Matters in Question. But in other Countries they have a Right to take Cognizance of the Actions of the Prince, and also to prescribe Laws, which shall oblige the Prince himself.

Many think, that in Order to know whether a Prince be Sovereign or not, we need only consider whether he mounts the Throne by Right of Succession, or by Means of Election; for according to them, successive Kingdoms only are Sovereign. But it is certain, that Maxim is not generally, and without Restriction, true. For Succession is not a Title that determines the Form of the Government, and the Extent of the Power of him that governs: It imports only a Continuation of the Rights of him, to whom one succeeds. When a Family is chosen to reign, the Right conferred upon it passes from Successor to Successor, with the same Power that the first Election had given, and no more. Among the Lacedemonians the Kingdom was Hereditary, even after the constituting of the Ephori. And of such a Kingdom, that is, of the chief Dignity of the State, Aristotle speaks, [17] Τούτων τν Βασιλειν α μν κατ γένος εσν, α δ αετα. Of those Kingdoms; some are Hereditary, others Elective. The same Author, [18] and Thucydides, [19] and Dionysius [20] of Halicarnassus, observe, that in the Times of the Heroes, most of the Kingdoms of Greece were so. On the contrary, the Roman Empire, even after all Power was taken from the Senate and People, [21] was conferred by Election.

XI. The second Caution.XI. Another Caution may be this, We must distinguish between the Thing itself, and the Manner of enjoying it; which takes Place not only in Things corporeal, but also in incorporeal: For a Right of Passage, or Carriage through a Ground, is no less a Thing [1] than the Ground itself.See Carolus Molinaeus on the Customs of Paris, tit. § 2. gl. 4 n. 16. But these some have by a full Right of Property, someby an usufructuary Right, and others by a temporary Right. Thus, amongst the Romans, the Dictator was Sovereign for a Time. [2] The Generality of Kings, [3] as well those who are first elected, as those who succeed to them in the Order established by the Laws, enjoy the Sovereign Power by an usufructuary Right. But there are some Kings, who possess the Crown by a full Right of Property, [4] as those who have acquired the Sovereignty by Right of [74] Conquest, or those to whom a People, in order to prevent greater Mischief, have submitted without Conditions. Neither can I agree with those, [5] who say the Roman Dictator had not the Sovereign Power, because it was not perpetual: For the Nature of moral Things is known by their Operations, wherefore those Powers, which have the same Effects, should be called by the same Name. [6] Now the [75] Dictator, during the whole Time of his Office, [7] exercised all the Acts of civil Government, with as much Authority as the most absolute King; and nothing he had done could be annulled by any other Power. And the Continuance of a Thing alters not the Nature of it, though if the Question be concerning Dignity, which is generally called Majesty, doubtless he that has a perpetual Right, has a greater Majesty, than he that enjoys it but for a Time, because the Manner of holding adds to the Dignity. The same Thing may likewise be said of such, as during the Minority, Lunacy, or Captivity of their Kings, are appointed Regents of the Kingdom, [8] [76] so that they depend not on the People, and cannot be deprived of their Authority before the Time fixed by Law.

But it is otherwise with those who are invested with a precarious Power, and which may be at any Time recalled,See Procop. Vandalic. 1. 1. c. 9. as were the Kings of the ancient Vandals in Africk, and of the Goths in Spain, whom the People might [9] depose, upon any Dislike. Whatever such a Prince does, may be abrogated by those who vested him with a Power so liable to Revocation; and consequently as the Exercise of his Authority has not the same Effects as the Acts of a true Sovereign, so neither is the Authority the same.

XII. Some Sovereign Powers held fully, with a Right of Alienation.XII. Against what I have said before, that some Governments are held in full Right of Propriety, that is, by way of Patrimony, some learned Men make this Objection, that Free-men are not to be barter’d away. But as there is a Difference between the regal Power, and that of a Master over his Slave; so likewise there is a Difference between civil Liberty,Fr. Hotoman. Quaest. Illustr. Qu. 1. and that which is personal: The Liberty of a private Person is one Thing, and that of the whole Body of the People another. For even the Stoicks [1] acknowledge there is a kind of Servitude ν ποτάξει in Subjection; and in Holy Writ the Subjects of Kings are called their Servants.1 Sam. xxii. 17 2 Sam. x. 2. 1 Kings ix. 22. As then personal Liberty excludes the Dominion of a Master, so does civil Liberty exclude Royalty, and all manner of Sovereignty properly so called. [2] Livy thus opposes them, Before Men had tasted the Sweetness of Liberty, they desired a King. Again, It seemed a shameful Thing that the Peopleof Rome, when they served under Kings, were never attacked in War, nor besieged by an Enemy, but being a free People should be besieged by the Hetrurians; and in another Place, The People of Rome are not now under a King but at Liberty. And again in another Place, he opposes those Nations that were free, to them that lived under Kings; and [3] Cicero said Either the Kings should not have been expelled, or the People should have had their Liberty in Deed, and not in Words. And after them [4] Tacitus, The City of Rome was at first under Kings; but L. Brutus brought in Liberty, and the consular Government. And elsewhere, The Liberty of the Germans is more severe than the regal Power of Arsaces. And [5] Arrian Βασιλεσι κα τσι πόλεσιν σα ατόνομα. To the Kings and free Cities, (those that live after their own Laws.) And Caecina in [6] Seneca, The regal [77] Thunderbolts are those whose Force affects either the Assembly of the States, or the chief Places of a free City: The Meaning whereof is that the State is threatened with a regal Power. So those Cilicians who were not under Kings were called Eleuthero Cilices, [7] free Cilicians. And [8] Strabo says of Amisus, (a City of Pontus) that it was sometimes free, and sometimes under Kings. And every where in the Roman Laws, that treat of War, and Judgments of [9] Recovery, Foreigners are distinguished into [10] Kings and free People. It is said even of those, who do not enjoy this publick Liberty, as well as of those who are deprived of personal Liberty, that they are not their own Masters; but that they belong to those on whom they depend. Hence that in [11] Livy, which Cities, which Lands, which Men were once under the Power of the Aetolians. And again, [12] Are the People of Collatia their own Master? The Argument then which is here used, is not to the Purpose, since [13] the Question does not relate to personal but civil Liberty. But properly, when a People is alienated, it is not the Men themselves, but the perpetual Right of governing them, as they are a People. Thus when a Freed Man is assigned to one of his Patron’s [14] Children, the Freeman is not alienated, but the Right which one had over that Person is transferred.

And that is as weak, which alledges, that because a King conquers other Nations by the Blood and Sweat of his Subjects, therefore what he so conquers, should rather belong to them than to the Prince. [15] For it is possible, that the King may maintain [16] his Army out of his private Estate, or out of [17] the Revenues of the Crown Lands. For, though a King has but an usufructuary Right to those Lands, [78] as he has to the Sovereignty over the People who have chosen him, yet are those Revenues properly his own: Just as, by the civil Law, when one is obliged to restore an Inheritance, the Incomes are not restored, because they are accounted to arise from [18] the Thing itself, and not to make Part of the Inheritance. Therefore it may happen that a King may so enjoy a Government over [19] some People in his own proper Right, that it may be in his Power even to alienate it; and we find in History [20] many Instances of Sovereignty accompanied by that Right. Strabo says, That the Island Cythera over-against Taenarus [21] did belong to Eurycles a Lacedemonian Prince, ν μεε κτήσεως δίας, in his own proper Right. So King Solomon gave to Hiram,1 Kings ix. 11. 12. (for so Philo Byblius, who translated the History of Sanchuniaton, calls him in Greek) King of the Phoenicians, twenty Cities, not of those that were inhabited by the Hebrews.Jos. xix. 27. For Cabul (which Name is given to those Cities) was seated without the Bounds of the Hebrews; but of those Cities, which some conquered Nations, Enemies to the Hebrews, had held to that Time, and were partly subdued by Solomon’s Father-in-Law, the King of Egypt, and given to him in Dowry with his Daughter, and partly conquered by Solomon himself. For it is plain, that those Cities were not at that Time inhabited by the Israelites, because when Hiram [22] ] had restored them,2 Chr. viii. 2. Solomon planted Hebrew Colonies in them.

Thus we read, that Hercules having conquered the City of Sparta, [23] gave the Sovereignty of it to Tyndareus, on Condition, that if Hercules left any Children of his own, he should restore it to them. So Amphipolis [24] was given in Marriage Dowry to Acamas Son of Theseus; and [25] Agamemnon promises in Homer to give Achilles seven Cities. King Anaxagoras gave two Parts of his Kingdom to Melampus. And [26] Justin tells us of Darius, that he bequeathed by Will his Kingdom to Artaxerxes, and to Cyrus the Cities, of which he was Governor. Thus, the [79] Successors of Alexander the Great [27] are to be considered as having succeeded him, every one in his allotted Part, in the full Right of Property, by Vertue whereof he governed those Nations, which had been formerly under the Persians, or else as having acquired that Sovereignty themselves, by Right of Conquest; therefore it is not to be wondered at, that they claimed to themselves the Right of Alienation.

When King Attalus, [28] the Son of Eumenes, had made, by his Will, the People of Rome Heir to his Goods, they, under the Name of Goods, possessed themselves of his Kingdom. Of which Florus [29] thus speaks, Therefore the Romans entering upon it as Heirs, reduced it into the Form of a Province, not by Force of Arms, but in a fairer Way, by Right of Inheritance.Appian Bell. Mithridat. & Bell. Civil. And afterwards, when Nicomedes, King of Bithynia, hadmade the People of Rome his Heir, they immediately reduced the Kingdom into the Form of a Province. And [30] Cicero, in his second Orationagainst Rullus, says thus, We have got a good Inheritance, the Kingdom of Bithynia. So that Part of Libya, called Cyrenaica, was left by King Apion,Eutrop. 1. 6. by Will, to the Romans. Tacitus, in his fourteenth Annal, mentions some Lands [31] which formerly belonging to King Apion, were, together with his King80] dom, bequeathed to the Romans. And in [32] Cicero, Every Body knows that the Romans are become Masters of the Kingdom of Aegypt, by Vertue of the Will of the King of Alexandria. Mithridates, in Justin, speaking of Paphlagonia, says, [33] Which fell to his Father, not by Force, and the Superiority of his Arms, but by a testamentary Adoption. The same Author also relates,Lib. 42. c. 4. Strabo, 1. 12. Id. 1. 13. that Orodes King of Parthia, was a long while debating, to which of his Sons he should leave his Kingdom. And Polemo, Prince of the Tibarenians, (a People of Cappadocia) and of the Country adjoining, left his Wife Heiress of his Dominion; which also Mausolus had formerly done in Caria, tho’ he had several Brothers alive.

XIII. Some are held not so fully.XIII. But as to Kingdoms which were originally established by the full and free Consent of the People, I confess [1] it cannot be presumed, that it was ever their Design to allow the King to alienate the Sovereignty. Wherefore what Crantzius observed in Unguinus,Hist. Dan. l. 2 cap. 4. as a Thing never heard of, that by his Will he had bequeathed Norway, [2] we have no Reason to blame, since he might have in View the Customs of the antient Germans, amongst whom the Kings had no Power to alienate their States. For as to what is related of Charles the Great, Lewis the Pious, and also others afterwards among the Vandals and Hungarians, the testamentary Dispositions, which they made, were rather bare Recommendations to [4] the People, who were to choose their Successors, than a true Alienation. And of Charles, Ado expressly remarks, that he much desired to have his Will [5] confirmed by the chief Nobles of France. [81] The like is reported of Philip King of Macedon, that when he designed to disinherit his Son Perseus, and settle the Crown upon Antigonus, his Brother’s Son, [6] he went over all the Cities of Macedon to recommend Antigonus to the Princes, as [7] Livy informs us. In Regard to what is said of Lewis the Pious, that he restored the City of Rome to Pope Paschal, [8] it is nothing to the Purpose, since the French having received the Sovereignty over the City from the People of Rome, might well restore it to the same People, in the Person of him, who represented them, asbeing Chief of the first Order of the State.

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XIV. Some Power not supreme, yet fully held.XIV. But now, the Distinction we make between Sovereignty, and the Manner of holding it is so well founded, that not only the Generality of Sovereigns are not Masters of their States with a full Right of Property; but also there are several Powers not Sovereign, who have a full Right of Property over the Countries within their Jurisdiction;See Mariana on the Principality of Urgeti, Hist. whence it happens, that Marquisates and Earldoms are more easily sold, and bequeathed by Will, than Kingdoms.

Hisp. I. 12. c. 16. [1] XV. Another Thing that proves the Reality of our Distinction, is the Manner in which the Regency of a Kingdom is regulated, during the Minority of the Heir to the Crown, or when the King is disabled by any Distemper from exercising the Functions of Government.XV. This appears from assigning Tutors and Guardians in Kingdoms. For in Kingdoms not Patrimonial, the Regency belongs to those, to whom the publick Laws, or upon their Deficiency, the Consent of the People shall consign it. But in Kingdoms Patrimonial, [2] it belongs to [83] those whom the Father, or nearest Kindred shall chuse. Thus we see in the Kingdom of [3] Epirus, which had been founded by the Consent of the People,See Cothman, to 1. cons. 41. n. 11. Guardians were nominated by the People to their young King Aribas; and by the Nobles of [4] Macedon to the posthumous Son of Alexander the Great: But in Asia the Less, that was won by the Sword,Plut. de Amore Fratern. [5] Eumenes appointed his Brother Guardian to his Son Attalus: So did Hiero in Sicily nominate [6] such as he thought fit to be Guardians to his Son Hieronymus.

But whether the King is Proprietor of every particular Spot of Ground in his Kingdom,Gen. xlvii. as the Kings of Aegypt, after the Times of Joseph, or as the Kings of India, according to Diodorus and Strabo, or whether he is not,Lib. 2. Lib. 15. this is extrinsick to Sovereignty, and has no Relation to the Nature of it: Thus there neither results from it another Form of Sovereignty, nor another Manner of holding it.

XVI. Sovereignty not lost by any Promise made of Things which belong not to the Law of God or NatureXVI. The third Observation is this, That [1] Sovereignty is not less Sovereignty, tho’ the Sovereign at his Inauguration solemnly promises some Things to GOD, or to his Subjects, even such [2] Things as respect the Government of the State. I do not here speak of the Observation of the natural and divine Law, or even of the Law of Nations, to which all Kings stand obliged, tho’ they have promised [84] nothing; but of the Observation of certain Rules, to which they would not be obliged but by their Promise. The Truth of what I say appears by the Example of a Master of a Family, who has promised his Family something that regards the Direction of it: For tho’ he is bound to perform his Promise, yet he does not therefore cease to be the Head, and in some Manner, the Sovereign of his Family, as far as the End and Constitution of that little Society permits. A Husband likewise loses nothing of his Authority over his Wife, for having promised her somewhat, which he stands obliged to fulfill.

Yet I must confess, where such Promises are made, Sovereignty is thereby somewhat confined, whether the Obligation only concerns the Exercise of the Power, or [3] falls directly on the Power itself.B. 2. ch. 11. In the former Case, whatever is done contrary to Promise, is unjust; because, as we shall shew elsewhere, every true Promise gives a Right to him to whom it is made. [4] In the latter, the Act is unjust, and void at the same Time, through the Defect of Power. It does not however follow from thence, that the Prince who makes such Promises, depends on a Superior; for the Act is not made void in this Case, by a superior Authority, but by Right itself. Among the Persians their [5] Monarch was, υτοκατς κα ναπεύθυνος, absolute, and accountable to none, as Plutarch declares, and adored as [6] an Image of the Divinity; nor, as it is in Justin, [7] was he changed but by Death. He was a King that spoke thus to the Persian Nobility, [8] I have called you together, that none might think I have followed only my own Counsel, but remember it is your Duty to obey, rather than advise. And yet upon his Accession to the Crown he took an Oath, as [9] Xeno- [85] phon and [10] Diodorus Siculus observe; and it was not [11] allowable for him to change the Laws that had been made in a certain Manner,Ch. vi. v. 8, 12, 15. as both Daniel’s History and [12] Plutarch in his Life of The mistocles inform us. [13] Diodorus Siculus too, B. xvii. and a long Time after, [14] Procopius in his first Book of the Persian War, [15] where there is a remarkable Story to this purpose. Diodorus Siculus [16] says the same Thing of the Kings of Aethiopia. The same Author tells us, [17] that the Kings of Egypt, who doubtless exercised a Sovereign Authority no less than the other Eastern Kings, were obliged to observe many Things, which if they did not perform, they could not during their Lives be called to an Account; yet after their Deaths, their [18] Memories might be arraigned, and being found guilty were refused solemn Burial; as [19] the Bodies of wicked Princes amongst the ancient Hebrews,2 Chr. xxiv. 25 — xxviii. 27. were not interred in the Royal Sepulchres; by this wonderful Temperament, the Sacredness of sovereign Majesty was preserved, and yet their Kings were restrained from breaking their Engagements for fear of a future Condemnation. [20] Plutarch also [86] tells us in the Life of Pyrrhus, that the Kings of Epyrus were accustomed to take an Oath, that they would govern according to the Laws.

See an Example in Crantzius His. Suec. 1. 9.But what shall we say of Promises, accompanied by this Clause, that if the King breaks his Faith, he shall forfeit the Crown? Even in that Case, the Power does not cease to be supreme, but the Manner of holding it will be limited by such a Condition, and the Sovereignty will not be unlike a temporary one. Agatharchides said, a King of the Sabaeans, was ναπεύθυνος , the most absolute Prince in the World,Ap. Photium. L. 16. and yet if he were found without his own Palace, he might be stoned to Death; which Strabo also observes out of Artemidorus.

Thus, Lands held as Feoffments of Trust are no less our own, [21] than if we possessed them with full Property; but yet they are capable of being lost. Such a commissory Clause may be added not only in Compacts between the People and the King, on whom they confer the sovereign Authority, but also in other Contracts. We see [22] ] some Treaties of Alliance made on that Condition with neighbouring Nations: or even by those Treaties it is stipulated, that the Subjects [23] shall not assist their King, nor obey him, if he violates his Engagements.

XVII. It may sometimes be divided.XVII. The fourth Observation is this, Though the sovereign Power be but one, and of itself undivided, consisting of those Parts above mentioned, with the Addition of Supremacy, that is, τ νυπευθύν, accountable to none, ( [1] ) yet it sometimes happens, that it is divided, either into subjective Parts, as they are called, or potential; (thatis, eitheramongst several Persons, who possess it jointly; or into several Parts, whereof one is in the Hands of one Person, and another in the Hands of another). Thus though there was but one Roman Empire, yet it [2] often happened, that one ruled in the Eastern Part, and another in the Western; nay, and sometimes the Empire was divided among three. So also it may happen, that the People in chusing a King, may reserve certain Acts of Sovereignty to themselves, and confer others on the King absolutely and without Restriction. This however does not take place, (as I have shewed already) as often as the King is obliged by some Promise; but only then, when either [3] the Partition is expressly made, (of which also we have treated above) or when the People being (as yet) free, shall require certain Things of the King, whom they are chusing, by way of a perpetual Ordinance; or if any Thing be added, whereby it is implied, that the King may be compelled or punished. [4] For every Ordinance flows from a Superior, at least in Regard to what is ordered. And Compulsion is not always indeed an Act of a Superior, for naturally every Man has Power to compel his Debtor; but it is repugnant to the State of an Inferior; therefore from Compulsion there at least follows an Equality, and consequently a Division of the sovereign Power.

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Many alledge here a great Number of Inconveniencies, to which the State is exposed by this Partition of Sovereignty, which makes of it as it were a Body with two Heads; but in the Matter of civil Government, it is impossible to provide against all Inconveniencies; and we must judge of a Right, not by the Ideas that such or such a Person may form of what is best, but by the Will of him, that conferred that Right; as we have already observed. A very ancient Example of this Division is brought by Plato in his third Book of Laws. For the [5] Heraclidae (the Posterity of Hercules) being settled at Argos, Messena and Lacedemon, their Kings were obliged to govern according to Laws prescribed to them; and whilst they did so, the People were bound to continue the Kingdom to them and their Posterity, and not to suffer any one to take it from them. Moreover, besides the reciprocal Engagement of each People and their King, the three Kings [6] stood engaged one to the other, the three Nations one to the other, and each King to the two neighbouring Nations, as also each Nation to the two neighbouring Kings; all of them together promising mutual Assistance.

XVIII. Ill inferred from this, that some Princes will have their Acts confirmed by the Senate.XVIII. But they are much mistaken, who suppose, because Kings will not allow some of their Acts to be of Force, till they are ratified by the Senate, or some other Assembly, that there is a Partition of Sovereignty. For whatever Acts are thus annulled, ought to be reputed as annulled by the King’s Authority, who by that Means ( [1] ) would take Care, that nothing deceitfully obtained of him, shall pass for his Will. Thus, Antiochus the third [2] wrote to the Magistrates, that they should not obey him, if he commanded any Thing contrary to Law;See Boe¨rius ad c. 1. de Const. in Decret. and there is a Law of Constantine, which enacts that Orphans and Widows should not be forced to come to the Emperor’s Court for Judgment, [3] even though the Emperor’s Order were produced. Wherefore this is like those Wills, which have this Clause added to them, that no Will hereafter made shall be of Force. For such a Clause implies, that a posterior Will would not proceed from the real Intent of the Testator. But as this Clause may be made void by [4] an express Revocation, so may the Act of a Prince by his express Command, or any special Declaration of his posterior Will.

XIX. Some other Examples ill drawn.XIX. Neither will I here (in order to establish the Truth of what I have now said concerning the Partition of Sovereignty) make use of the Authority of Polybius, ( [1] ) who reckons the Roman Republick amongst those States, whose Government was mixt. For at the Time in which he wrote, the Government was merely [2] popular, if we consider the Right and not the Manner of acting; since not only the Authority of the Senate, which he refers to Aristocracy, but also that of the [88] Consuls, which he compares to Monarchy, were both dependent on the People. What I have said of Polybius, I say likewise of other Authors, who, in writing on Politicks, may think it more agreeable to their Purpose, to regard the external Form of Government, and the Manner in which Affairs are commonly administered, than the Nature itself of Sovereignty.

XX. True Examples.XX. More to the Purpose is that of Aristotle who says ( [1] ) there are some Sorts of Royalty of a mixt Kind between an absolute Monarchy, [2] which he calls παμβασιλείαν, (the same is παντελς Μοναχία in Sophocles’s Antigone; υτοκατς βασιλεία, κα νυπεύθυνος, in Plutarch; ξουσία υτοτελς, in Strabo) and a Kingdom like that of Lacedemon, which is only the first Dignity of the State; of such a Mixture we have an example (I think) in the Israelitish Kings, for without Doubt in most Things they ruled with an absolute Power. For the People desired a King, [3] such a one as the neighbouring Nations had; but the Power of the Eastern Kings was very absolute. Thus Aeschylus brings in Atossa speaking to the Persians of their King, οκ πεύθυνος πόλει, not accountable to the State for his Actions.L. xxxvi. And that of [4] Virgil is well known, The Egyptians, Lydians, Parthians and Medians, have not a more profound Respect for their King. And in [5] Livy: The Syrians, and People of Asia are Men born to Slavery; [6] [89] to which agrees with that of Apollonius in [7] Philostratus, σσύιοι κα Μδοι τας τυαννίδας ποσκυνοσι: The Assyrians, and Medes adore arbitrary Government; and that of Aristotle,Polit. 1. 3. c. 14. Hist. iv. ο πε τν σίαν πομένουσι τν δεσποτικν χν, οδν δυσχεαίνοντες: The Asiaticks submit to despotick Power without Difficulty; and in Tacitus, that of Civilis Batavus to the Gauls, Let Syria and Asia serve, and the East accustomed to Kings. For at that Time there were Kings in Germany and Gaul; but as the same Author observes, they governed in a precarious Manner, more by a persuasive, than commanding Power.

We have also observed before, that the whole Hebrew Nation depended on their King; and Samuel describing the Right of Kings, fully shews, that there remained [8] no Power in the People against the Injuries of their Kings, which the [9] Ancients rightly gat her from that of the Psalmist. Against thee, thee only have I sinned.Ps. li. 5. Upon which St. Jerom descants; Because as a King, he feared no Man. And St. Ambrose, he was subject to no Laws, for Kings cannot transgress (against Men,) and being secure under their own Power, can be punished by no Law. Therefore he did not sin against Man, because he was accountable to no Man for his Actions. We may read the same in Isidore of Pelusium, in his 383 Epistle of the last Edition. I know indeed that the Jews themselves grant, [10] that if their Kings offended against those Laws, which were written concerning the Duty of a King, they were scourged for it; but that sort of Punishment carried no Infamy with it, and the King suffered it voluntarily, to give thereby some Marks of his Repentance; nor was it a publick Officer that scourged him, but such a Person as he himself chose, and the Number of Stripes were regulated according to his own Pleasure.Deut. xxv. 9. As for the rest, their Kings were so free from all coactive Punishment, that the very Law [90] of Excalceation (the pulling off the Shoe) because it had something of Dishonour in it, did not affect them. The Sentence of the Hebrew Barnachman is still extant in the Sayings of the Rabbins, under the Title of Judges, No Creature judges the King, God only has that Power.

Yet notwithstanding all this, there were some Cases which,Ex. xxii. 8. Deut. i. 17. Ps. lxxxii. i. I suppose, the Kings had no Right to judge, and were referred to the [11] Sanhedrim (the Council) of 70 Elders, which being instituted by Moses at God’s Command, continued without any Interruption to the Days of Herod. Wherefore both Moses and David called the Judges [12] Gods,2 Chr. xix. 6, 8. 1 Chr. xxvi. 32 2 Chr. xix. II. and their Judgments [13] God’s Judgments. And the Judges are said to judge by the Authority of God, and not by the Authority of Men; and there is a plain Distinction made between the Things of God, and the Things of the King. Where by the Things of God, (as the most learned among the Jews interpret it) are meant, the Judgments, that were to be rendered [14] according to the Law of God. I do not deny, but that the Kings of Judah did [15] of themselves take Cognizance of some criminal Affairs, in which Maimonides prefers them [16] to the Kings of the ten Tribes of Israel; and that plainly appears from many Examples, as well in Holy Writ, as in Hebrew Authors; but it seems that the Cognizance of some Causes was not allowed to them, as concerning Crimes committed by a Tribe, or by the High [17] Priest,Luke xiii. 33. or by a Prophet; and this is plain from the Story of the Prophet Jeremy,Jer. xxxviii. 5. whom when the Princes demanded to put to Death, the King answered them, Behold he is in your Power, and the King can do [18] nothing against you, that is, in such sort of Affairs.Joseph. Antiq. Moreover, when any one had been accused before the Sanhedrim, upon any other Account whatsoever, it was not in the King’s Power to screen him from the Judgment of that Tribunal: and therefore Hyrcanus, finding there was no Way to hinder Herod from being tried, sought out Expedients to elude the Sentence.

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In Macedonia, those that descended from Caranus, as Callisthenes says in Arrianus: [19] ο βί λλ νόμ Μακεδόνων χοντες διετέλεσαν, reigned according to the Laws, and not by Force; and Curtius, [20] in his fourth Book, though the Macedonians were used to regal Government, yet they lived in a greater Appearance of Liberty than other Nations: For the King himself could not judge of capital Crimes: And the same Author in the 6th Book, [21] By an ancient Custom amongst the Macedonians, the Army took Cognizance of capital Crimes, in Time of War; and the People in Time of Peace; so that in this Respect the Kings had no Power, but by the Way of Persuasion. There is also in another Place of the same Author another Instance of this Mixture, [22] ] The Macedonians decreed, that according to the Custom of their Nation, their King should never hunt on Foot, or without being attended by some of the Nobles and of his Favourites. And Tacitus of the Goths, They were under the Government of [23] Kings, who kept them a little more in Subjection, than those of other Nations in Germany, but so as not to leave them an entire Liberty. He had said before (in speaking of the Germans in general) that their Kings, who were only the chief or principal Men of the State, [24] governed rather by Persuasion, than by their Authority. But elsewhere he describes an absolute Monarchy in these Words, [25] They (the Suiones) are under the Dominion of a Prince, whose Authority is absolute, and not precarious. And Eustathius describing the Republick of the Corcyreans, [26] said it was a Mixture of regal and aristocratical [27] Government. I observe that there was something like this in the Times of the Roman Kings: For then almost all Affairs were managed by the King. Romulus (says [28] Tacitus) governed us as he pleased; and it is certain, that in the first Beginnings of the City, the Kings had all Power, says [29] Pomponius. Yet Dionysius Halicarnassensis [30] affirms, that even at that very Time, some Things were reserved in the People. But if we had rather believe the Roman Authors, in some Cases, Appeals might be made from the King to the People, as Seneca [31] gathers out of Cicero’s Book of a Commonwealth; [92] and also out of some pontifical Books, and Fenestella. Servius Tullius, who ascended the Throne through the Favour of the People, rather than by Vertue of a just Title, still more diminished the royal Authority; for, as Tacitus says, he enacted some Laws, [32] to which the Kings themselves were to submit. Wherefore no wonder if [33] Livy makes only this Difference between the Power of the first Consuls, and of the Kings, that the Consulship was but for one Year.

The like Mixture of Popular and Aristocratical Government was in Rome [34] during an Interregnum, and in the Times of the first Consuls. [35] For in some Things, and those of Moment, what the People commanded was of no Force, [36] without the previous Approbation of the Senate. And there remained something of this Mixture even later, whilst the Power, as the same Livy [37] says, was in the Hands of the Patricians, that is, of the Senate; and the Relief, or the Right of Opposition, in the Hands of the Tribunes, that is, of the People. But afterwards, the Power of the People being increased, the Consent of the Senate was no more than a mere Ceremony, and a vain Image of their antient Right; since the Senators ratified the Deliberations of the Assembly of the People, even before they knew what would be resolved in it, as Livy [38] and Dionysius observe. To conclude, Isocrates pretends that the Government of Athens was, in the [39] Time of Solon, A Democracy mixed with an Aristocracy. These Things being premised, let us examine some Questions, which are often produced on this Subject.

XXI. A Confederate on unequal Terms may have the Supreme Power.XXI. The first is, Whether a Power inferior to any other by Vertue of a Treaty of unequal Alliance, may have the Sovereignty? [1] By unequal Alliance I mean, not such as is made between two Powers whose Strength is unequal; as when [2] the City of Thebes in the Time of Pelopidas made a League with the King of Persia, and the Romans with the Massilians, and afterwards with King Masinissa;Justin, l. 43. c. 5. nor such as stipulates some transient Act, as when an Enemy is reconciled, upon paying the Charges of the War, or performing any other Thing once for all.Valer. Max. l. 5. c. 2. But I mean, when by the express Articles of the League, some lasting Preference is given from one to the other; or whereby the one is obliged to maintain the Sovereignty and Majesty of the other; as it was in the [3] League between the Aetolians and the Romans, that is, to hinder any Attack on their Sovereignty, and to make [93] their Dignity, which is denoted by the Word Majesty, to be respected; Tacitus [4] calls that the having a Reverence for the Roman Empire; which he thus explains, Tho’ placed on their Banks, and beyond the Limits of our Empire, yet in Mind and Will they act with us. So Florus, [5] Other People, who were not under the Dominion of the Romans, were sensible of their Grandeur, and reverenced the Conquerors of Nations.

[6] Andronicus Rhodius rightly observes after Aristotle, that this is proper to Friendship between Unequals, that the more Honour be given to the more powerful, and the more Assistance to the more weak.

To the Inequality in Question may be referred some of those Rights, which are now called Right of [7] Protection, Right of [8] Patronage, and a Right termed [9] Mundiburgium; as also that which [10] Mother Cities had over their Colonies among the Grecians. For, as Thucydides [11] says, those Colonies enjoyed the same Right of Liberty with the other Cities; but they owed a Reverence to the City whence they derived their Origin, and were obliged to render her τ γέα τ νομιζόμενα, Respect, and certain Expressions of Honour.

Livy, [12] concerning that antient League between the Romans, who were become absolute Masters of Alba, and the Latins descended from Alba, says, that in that Treaty the Romans were acknowledged Superiors. We know what Proculus replied to this Question, viz. that [13] every People that does not depend on another is free, even tho’ by a Treaty of Alliance they are bound to maintain and reverence the Majesty of another People. If then a Nation bound by such a Treaty remains yet free, and not subjected to the Power of another, it follows, that it still retains its Sovereignty; and the same may be said of a King. For there is no Difference between a free People, and a King that is really so. And Proculus adds, that such a Clause inserted in a Treaty of Alliance, imports only that one Nation is superior, and not that the other is not free. The Word Superior ought to be understood here, not in regard to Power and Jurisdiction, (for he had said before, that the People inferior by the Treaty do not depend on the other, that are superior to them) but in regard to Reverence and Dignity, which the following [94] Words do explain by a proper Similitude. As we know (says he) our Clients to be free, tho’ they be not equal to us in Authority, Dignity, nor [14] every Right; so they that ought to maintain and respect the Majesty of our State, are to be considered as free.

Clients are under the Protection of their Patrons: So Nations, who are inferior by a Treaty of Alliance, [15] are under the Protection of the People who are their Superior in Dignity. They are under their Protection, not under their Dominion; as Sylla speaks [16] in Appian, on their Side, and not under their Subjection, as Livy [17] says. And Cicero, in his second Book of Offices, speaking of those Times when Virtue reigned amongst the Romans, says, [18] They were the Protectors, and not the Masters of their Allies. To which agrees that of Scipio Africanus the Elder, [19] The People of Rome had rather engage Men by Kindness than by Fear, and gain foreign Nations by Protection and Alliance, than subject them by hard Bondages; and what Strabo [20] relates of the Lacedemonians after the Coming of the Romans into Greece, they continued free, contributing nothing but what they were obliged to do as Friends and Allies. As private Protection takes not away personal Liberty, so publick Protection does not the Civil, which cannot be conceived without Sovereignty. Therefore you may see Livy opposes the State of those who [21] are under the Protection of another People, to that of those who are under their Dominion. And Augustus threatned [22] ] Syllaeus King of the Arabians (as Josephus [95] relates) if he did not leave off injuring his Neighbours, he would take Care that he should be made a Subject of a Friend; which was the Condition of the Kings of Armenia, who, as Paetus writes to Vologeses, [23] were under the Roman Jurisdiction, and consequently more Kings in Name than Reality; as were also the Kings of Cyprus, and some others, formerly Subjects [24] to the Persian ποταγέντες, as Diodorus calls them.

Here may be objected what Proculus adds, [25] Those who are Members of confederate States are summoned to appear before us; they are tried at our Tribunals, and are punished by Vertue of the Sentence passed against them. But to make this more plain, we must know there are four Kinds of Differences, or Subjects of Complaint. First, If the Subjects of the King or State under Protection, are accused of having done any Thing contrary to the Treaty of Alliance. Secondly, If the King, or the States themselves be accused. Thirdly, If the Allies under the [96] Protection of the same King or State do quarrel among themselves. Fourthly, If Subjects complain of Injuries done by their Sovereign.

As to the First, If any Thing has been committed contrary to the Articles of Treaty, the King or State are obliged either to punish the Offender, or to deliver him up to them that are injured; which takes Place not only between unequal Confederates, but also equal; and even between such as are not engaged in any League, as we shall shew in [26] another Place. The Sovereign is also obliged to endeavour to have Satisfaction made, which in Rome was called the [27] Delegate’s Office. And Gallus Aelius in Festus says, A Recovery is when the Law decides between King and People, Nations and Foreign States; how Things may be restored by the Assistance of a Judge Delegate, how they may be recovered, and how private Mens Cases may be prosecuted among themselves. But one of the Confederates has no Right directly to seize or punish the Subject of another; therefore Decius Magius, a Campanian, being seized by Hannibal,Livy, l. 23. and sent to Cyrene, and from thence to Alexandria, declared, that he was seized by Hannibal contrary to the Articles of the League, and there upon was set at Liberty.

As to the second, The superior Ally has a Right to compel the inferior to stand to the Articles of the Treaty, and upon refusal to punish him. But neither is this peculiar to unequal Alliances; the same Thing takes Place between equal Allies. For, to have a Right to punish any one that has rendered himself guilty, it is sufficient that one is not subject to him; which [28] shall be treated of elsewhere; wherefore Kings or Nations not allied, have also that Right in regard to one another.

As to the third Case, As in an equal Confederacy, Controversies are generally referred to [29] a Convention of the Associates, who are not interested in the Affairs in Question, as we find was formerly practised amongst the Greeks, Latins, and Germans, or to the Decision of Arbitrators, or even to the Judgment of the chief of the Confederacy, as to a common Arbitrator: So in an unequal Confederacy, it is commonly agreed that the Things in Dispute shall be determined before him, who is the Head of the League. Therefore this does not imply any Jurisdiction; for even Kings have often their Causes tried before Judges appointed by themselves.

As to the fourth and last, Associates have no Right of Judging: When therefore Herod accused his own Sons before Augustus of certain Crimes, they replied, [30] You might have punished us by your own Right, both as a Father, and as a King. And when Hannibal was accused at Rome by some Carthaginians, [31] Scipio told the Senate, it did not belong to them to meddle in Affairs belonging to the Republick of Carthage. And ’tis in this [32] Aristotle says an Alliance differs from a State, that ’tis the Business of Allies to take Care that no Injuries be done by one to the others, but not that the Subjects of a confederate State do not injure one another.

It may again be objected, that Historians make use of the Word to command, in speaking of the Prerogatives of a superior Ally; and that to obey, in speaking of the Engagements of the inferior Ally. But this should not affect us; for this is, when the Things concern either the common Good of the Allies, or the private Advantage of the Superior in the League. As to Things of common Concern, when the Assembly does not sit, even in an equal League, he that is chosen Prince of the League נגיר ברית, Dan. xi. 22.) commonly commands the other Allies, as Agamemnon did the Grecian Princes; and afterwards the Lacedemonians did the Grecians, and after them the Athenians. We read in [33] Thucydides’s Oration of [97] the Corinthians. The Chiefs of an Alliance ought not to challenge any Advantage in what concerns their particular Interest: But it is just, that in the Administration of common Affairs they have the Preeminence. Isocrates says, that the antient Athenians, whilst they were the Chiefs of Greece, [34] were contented to take Care of common Affairs, but as for the Rest, they left to every People their Liberty: And elsewhere, [35] being persuaded that they ought to have the Command of the War, and not to rule over their Allies. And again, Managing their Affairs like Confederates, not despotically. The Latins express by the Word imperare, to command, that Right of the principal Ally; but the Greeks more modestly use the Term τάσσειν, to regulate. The Athenians having the Conduct of the War against the Persians, as [36] Thucydides relates it, did regulate which Cities should contribute Money against the Barbarians, and which Ships. So they who were sent from Rome into Greece, [37] are said to be sent to regulate the State of the free Cities. But if he, who is only chief of the Confederacy, governs the common Affairs in the Manner I have now said, we must not wonder, that in an unequal Alliance, the superior Ally does the same Thing. Therefore Imperium, in this Sense, that is, γεμονία, chief Command, does not take away the Liberty of others. The Rhodians, in their Oration to the Roman Senate, extant in Livy, thus addressed them, [38] The Grecians formerly were strong enough to command: Where the Command is now, they wish it may be forever; they are contented to defend their Liberty with your Arms, not being able to do it with their own. Thus Diodorus tells us, after the taking the Fort of Cadmea, by the Thebans, many Grecian Cities [39] joined in a League, to maintain in common their Liberty, under the Conduct of the Athenians. Dion Prusaeensis, speaking of those very Athenians in the Time of Philip of Macedon, said, [40] Having at that Time abandoned the Command in War, they only retained their own Liberty. Thus [41] Caesar calls those People Confederates, whom alittlebefore he had said were under the Command of the Suevians.

But as to those Things which respect the particular Interest of each Ally, if the Demands of the superior Ally are often called Commands, that does not imply any Right to require such Things with Authority; but that Way of Speaking is used, because those Demands produce the same Effect, as Commands properly so called, and the same Regard is paid to them. In this Sense the Intreaties of a King are called Commands, and the Advices of a Physician Prescriptions. [42] Before this Consul (C. Posthumius) no Body, says Livy, B. 42. was ever chargeable, or any Ways burdensome to our Confederates; our Generals were abundantly supplied with Mules, Tents, and all Baggage necessary for War, that they should not command the Allies to furnish them.

In the mean Time it is true, that it often happens, that if he who is superior in the League, be much more powerful than the Rest, he by [43] Degrees usurps a Sovereignty, properly so called, over them, especially if the League be perpetual, and that he has a Right to plant Garrisons in their Towns; as the Athenians did, when they suffered their Allies to appeal to them, [44] which the Lacedemonians [98] never did. Whereupon Isocrates compares the Rule which the Athenians exercised over their Confederates [45] to that of Kings. Thus the [46] Latins complained, that under the [47] Pretence of a Confederacy with the Romans, they were brought into Servitude. So did the Aetolians, [48] that they had nothing left but the bare Shadow, and empty Name of Liberty; and the [49] Achaeans afterwards, that they had a League in Show; but in Reality a precarious Slavery. So in [50] Tacitus Civilis Batavus complains of the same Romans, that they used them not as at first, like Confederates, but as mere Slaves: And in another Place, [51] they falsely called that Peace, which was indeed a miserable Slavery. Eumenes also, in Livy, [52] said the Confederates of the Rhodians were only so in Name, but really their direct Vassals. Also the [53] Magnesians complained that Demetrias was free in Shew; but in Effect all Things were managed as the Romans pleased; and Polybius [54] remarks, that the Thessalians were in [55] Appearance free, but in Truth under the Dominion of the Macedonians.

When Things go in that Manner, and Usurpation is changed at last into Right, by the tacit Concession of those who suffer it, of which we shall treat in another Place; [56] then those who had been Allies become Subjects, or at least there is made a Partition of the Sovereignty, which, as I said before, may happen [99] sometimes.

XXII. Of those that pay Tribute.XXII. There are also Powers, [1] who pay something to another, either to secure themselves from their Insults, or to get Protection, ξύμμαχοι όου ποτελες, [2] Tributary Confederates, as it is in Thucydides; such were the [3] Kings of the Jews, and of the [4] neighbouring Nations, after the Time of M. Anthony, πί όοις τεταγμένοις, as Appian speaks; yet I see no Reason to doubt, but that such Sort of Allies may have Sovereignty, tho’ the acknowledging their Weakness takes off something from their Dignity.

XXIII. Of those that hold their Dominions by a Feudal Tenure.XXIII. Many think it more difficult to determine, whether feudatory Princes may be Sovereign? But that Question may be easily decided by what has been said before. For in this Contract, [1] (which is peculiar to the German Nation, and no where found but where they have planted themselves) two Things are to be particularly considered, First, The personal Obligation of the Vassal. Secondly, The Right of the Lord to the Thing itself.

The personal Obligation is the same, whether a Man holds the Sovereignty by a feudal Right, or any Thing else, tho’ lying [2] in another Place. But such an Obligation, as it takes not from a private Man personal Liberty, so neither does it lessen the Sovereignty in a King or State, which is Civil Liberty. Which may be plainly seen in Franc Fiefs, which consist in personal Obligation only, but [3] give [100] no Right to the Thing itself. For these are nothing else but a Species of that unequal League, of which we have treated already, where in one promises Services, and the other Defence and Protection. But suppose a Vassal has promised his Lord to serve him against all and every Man, which they now call [4] Feudum Ligium,See Bald. Prooem. Digest. Natta, Consil. 485 (for formerly that Word was of a larger Signification) that takes off nothing [5] from the Right of Sovereignty which the Vassal has over his own Subjects; not to mention, that there is always a tacit Condition supposed, viz. that the War undertaken by the Lord [6] be just: Of which we shall treat in another Place.

As to the Right of the Lord to the Thing itself, enjoyed by a feudal Title, it is such indeed, that if the Family of the Vassal be extinct, or if he falls into certain Crimes, he may lose the very Right of Sovereignty: Yet the Power he has over his Subjects does not cease to be Sovereign; for as I have often said, there is a Difference between the Thing, and the Manner of holding it. And I find many Kings constituted by the Romans with this Condition, that upon the failing of the Royal Family the Sovereignty should return to themselves;Lib. 12. as Strabo observes of Paphlagonia, and some other Kingdoms. [7]

[101]

XXIV. A Man’s Right distinguished from the Exercise of that Right.XXIV. We must also distinguish in Sovereignty, as well as Property, between the Right itself, and the Exercise of that Right, or between the first Act and the second. [1] For as a King, when an Infant, has a Right to govern, but cannot exercise that Right; so has a Prince that is Lunatick, or a Prisoner, or that lives in a foreign Country, so that he is not at Liberty to exercise himself the Acts of Sovereignty: For in all such Cases they have their Lieutenants or Vice-Roys to act for them. Therefore Demetrius, living confined under Seleucus,Plut. in Demetrius. forbad any Credit to be given to his Letters, or Seal, but ordered that all Things should be administred as if he were dead.

CHAPTER IV↩

Of a War made by Subjects against their Superiors.

1. The Question stated.I. Private Men may certainly make War against private Men, as a Traveller against a Robber, and Sovereign Princes against Sovereign Princes, as David against the King of the Ammonites; and so may private Men against Princes, but not their own, as Abraham did against the King of Babylon,2 Sam. x. and other neighbouring Princes; so may Sovereign Princes against private Men, whether their own Subjects, as David [1] against the Party of Ishbosheth, or Strangers, as the Romans against Pirates. [102] Gen. xiv.

The only Question is, whether private or publick Persons may lawfully make War against those that are set over them, whether as supreme, or subordinate. First, it is agreed on all Sides, that they that are commissioned by the higher Powers may make War against their Inferiors, as Nehemiah did by the Authority of Artaxerxes, against the neighbouring petty Princes.Nehem. Ch. ii. & iv. Thus the [2] Roman Emperors allowed the Proprietor of an Heritage to drive away Harbingers or Quarter-masters. But the main Question is, What is lawful for Subjects to do against their Sovereign, or those that act by his Authority. This is allowed by all good Men, that if [3] the civil Powers command any Thing contrary to the Law of Nature, or the Commands of God, they are not to be obeyed. For the Apostles,Acts iv. 19. — v. 29. when they alledged, that we must obey God rather than Man, did but appeal to a Principle of Reason, engraved on the Minds of Men, which [4] Plato expresses almost in the very same Words. But if for this, or any other Cause, any Injury be done us by the Will of our Sovereign, we ought rather to bear it patiently, than to resist by Force.

II. War against Superiors, as such is unlawful by the Law of Nature.II. Indeed all Men have naturally a Right to secure themselves from Injuries by Resistance, as we said before. But civil Society being instituted for the Preservation of Peace, there immediately arises a superior Right in the State over us and ours, so far as is necessary for that End. Therefore the State has a Power to prohibit the unlimited Use of that Right towards every other Person, for maintaining publick Peace and good Order, which doubtless it does, since otherwise it cannot obtain the End proposed; [1] for if that promiscuous Right of Resistance should be allowed, [103] there would be no longer a State, but a Multitude without Union, such as the [2] Cyclops were, every one gives Law to his Wife and Children. A Mob where all are Speakers, and no Hearers. Or the [3] Aborigines, whom Sallust mentions as a wild and savage People, without Laws, without Government, loose and dissolute. And in another Place the [4] Getulians, who had neither Customs, Laws, nor Magistrates. So we find that the Resistance in Question, is looked upon as unlawful, according to the Usage of all States. All human Societies (St. Augustine [5] tells us) unanimously agree to obey Kings. So Aeschylus, [6] ταχς μόναχος κ’ υχ’ πεύθυνος κατε, A King absolute, accountable to none. And in Sophocles, [7] χοντές εσιν, σθ’ πεικτέον·, τί μ; They are Princes, we must obey; why not? And in Euripides, [8] Τς τν κατούντων μαθίας χεν έειν, We must bear with the Follies of Princes. Agreeably whereto is that we quoted above out of Tacitus; and in another Place he says, [9] The Gods have bestowed a sovereign Power on Princes, leaving Subjects the Glory to obey. And, The bad Treatment we receive from a King, must be looked on as good [104] Treatment. Seneca [10] says, We must bear patiently whatever the King commands, whether just or not: a Thought which he borrowed from [11] Sophocles. And likewise in Sallust, [12] To do any Thing with Impunity, is peculiar to a King.

Hence it is, that the Majesty (that is, the Dignity and Authority) of the Sovereign, whether it be King or State, is fenced with so many Laws, and so many Penalties; which Authority could not be maintained, if it were lawful to resist. [13] If a Soldier resist his Officer that corrects him, if he lays hold on the Cane, he is degraded; but if he wilfully break it, or strike again, he is punished with Death. And in Aristotle, [14] If a Magistrate strikes, he shall not be struck again.

III. Nor allowed by the Hebrew Law.III. By the Hebrew Law, he that was disobedient, either [1] to the High-Priest, or to the extraordinary Governor appointed by God, was to be put to Death. But that which in Samuel is spoken of the Right of Kings, [2] to him that thoroughly considers it, appears not to be understood of a true Right,Jos i. 18. Deut. xvii. 12. 1 Sam. viii. 11. Deut. xvii. 14. that is, of a Power to do honestly and justly, (for a far different Way of living is prescribed to a King, in that Part of the Law which treats of a King’s Duty) nor of barely what he will do; for that would not have been extraordinary in him, when even private Men do likewise Injuries [3] to private Men; but it is to be understood of an Action, [105] whether just or not, as has in it some Effect of Right, that is, it implies the Obligation [4] of Nonresistance. Therefore it is added, when People are thus oppressed, they should cry unto GOD for Help, [5] as if no Remedy were to be expected from Man. It is then a Right, in the same Sense as it is said that [6] the Pretor renders Justice, even when he pronounces an unjust Sentence.

IV. Nor by the Law of the Gospel, as proved by Scripture.IV. Where Christ in the New Testament commands to give to Caesar the Things that are Caesar’s, he certainly intended, that his Disciples should yield as great, if not a greater Obedience (both active and passive) to the higher Powers, than what the Jews were bound to pay to their Kings. Which St. Paul (who could best interpret the Words of his Lord) largely describing the Duties of Subjects,Rom. xiii. says among other Things, He that resists the Power, resists the Ordinance of God, and they that resist, shall receive unto themselves Damnation. And a little further, for he is the Minister of God to thee for Good. And again, Wherefore ye must needs be subject, not only for Wrath, but also for Conscience Sake. He includes in Subjection the Necessity [1] of Nonresistance, not only such as arises from the Apprehension of a worse Evil, but such a one as flows from the Sense of our Duty, whereby we stand obliged not only to Man, but to GOD also: He adds two Reasons for it; First, because GOD has approved of this Ordinance of commanding and obeying, both formerly in the Jewish Law, and now in the Evangelical, wherefore the publick Powers are to be esteemed by us, as ordained by GOD himself; for we make those Acts our own, which we support and countenance by our Authority. Secondly, because this Ordinance tends to our Advantage. But some may say, to bear Injuries is not advantageous; to which others, more truly, than pertinently to the Apostle’s Meaning, as I suppose, say, these Injuries are also advantageous to us, because such a Patience shall not lose its Reward. The Apostle seems to me to have regarded the general End proposed in this Ordinance, which is the [2] publick Peace, wherein is comprehended that also of every particular Person. And certainly this Advantage we [106] commonly receive from the sovereign Powers: For no Body ever wished ill to himself, and the Happiness of the Prince depends on the Happiness of his Subjects, sint quibus imperes, leave some to reign over, [3] said one to Sylla. The Hebrews have a Proverb, [4] If there were no sovereign Power, we should swallow up one another alive. To which agrees that of [5] St. Chrysostom, Take away the Governors of States, Men would be more savage than Brutes, not only biting but devouring one another.

If the supreme Magistrate sometimes, through Fear, Anger, or some other Passion deviates from the straight Path, that leads to publick Tranquillity; it ought to be considered as a rare Case, and an Evil which, as Tacitus [6] observes, is made up by good Offices. It is enough for the Laws to regard that which generally happens, as [7] Theophrastus said, and to which we may apply that of [8] Cato, No Law can be convenient for every particular Person, it is enough, if it be beneficial in general, and to the greater Part. But as to such Cases, which rarely happen, they ought to be submitted to the general Rules. For though the Reason of the Law does not take Place in such or such a particular Case, yet it subsists in its Generality, to which particular Cases ought to make no Exception; because that is much better, than to live without Law; or to allow every Man to be a Law to himself. Seneca speaks pertinently to this Purpose. [9] It is better not to admit of an Excuse, though just, from a few, than that all should be allowed to make what Excuse they please.

Here we shall cite that remarkable [10] Saying of Pericles in Thucydides. [11] I esteem it better, even for private Men, that the State in general flourish, though they themselves do not thrive in it, than that they should flourish in their Affairs, and the Publick suffer. For let a Man’s private Affairs be never so prosperous, yet if his Country be lost, he must perish with it. On the contrary, if the State flourish, a Man in bad Circumstances may mend his Condition. Since then the State can relieve private Persons in their Misfortunes, but private Persons cannot do the same Thing in regard to the State; ought not every one to concur in defending it, instead of acting like you, who, being overwhelmed with your domestick Losses, abandon the Care of the publick Safety? Which Livy speaks in short, [12] If the Commonwealth flourish, it secures every Man’s private Estate, but by betraying the Publick, you will never preserve your own. And Plato observed, [13] τ μν γ κοινν ξυνδι, &c. That which is the Bond of States, is the Care of the publick Good, and that which destroys them is the minding only one’s private Advantage; therefore it concerns both the State and private Men, to prefer the Interest of the publick to that of particular Persons. And Xenophon, [14] στις ν πολέμ, &c. He that [107] mutinies against his General in War, offends against his own Safety. And Jamblichus, [15] private Interest is inseparable from the Publick, each particular Advantage is included in the Publick; for as in the natural Body, so in the political, the Preservation of the Parts depends on that of the Whole.

Now, in publick Matters there is nothing more considerable than the Order of Government I have spoken of, which is incompatible with the Right of Resistance left to private Persons. I shall explain this out of an excellent Place in Dion Cassius, ο μέν τοι κα γ, &c. [16] I think it neither decent for a Prince to submit to his Subjects, nor can one ever be in Safety, if those who ought to obey pretend to command. Do but consider what a strange Disorder it would cause in a Family, if Children should be allowed to despise their Parents, and what in Schools, if Scholars should slight their Masters; what Health for Patients that will not be ruled by their Physicians? Or what Security for those in a Ship, if the Sailors will not follow the Orders of the Pilot? For Nature has made it necessary, and useful to Mankind, that some should command, and some should obey.

1 Ep ii. 17, 18, 19, 20.To the Testimony of St. Paul, we shall add that of St. Peter, whose Words are these, Honour the King; Servants be subject to your Masters, with all Fear, not only to the Good and Gentle, but also to the Froward; for this is thank-worthy if a Man for Conscience toward GOD endure Grief, suffering wrongfully. For what Glory is it, if when ye be buffeted for your Faults, ye shall take it patiently? But if when ye do well, and suffer for it, ye take it patiently, this is [17] acceptable with GOD. He immediately confirms this by the Example of CHRIST. And Clement in his Constitutions, expresses the same Sense in these Words, δολος, &c. Let the Servant love his Master with the Fear of God, though he be wicked and unjust. Here we may observe two Things. First, that what is said of Submission to Masters, however froward they are, ought [18] to be applied to Kings. For that which follows, being built upon the same Foundation, respects the Duty of Subjects as well as of Servants; and secondly, that the Submission, to which we are bound, implies an Obligation to bear Injuries with Patience; as it is usually said of Parents, [19] Love your Parent if he is just; if not, bear with him. [20] A young Man of Eretria, who had been long a Disciple to Zeno, being asked, what he had learnt, answered, γν πατς έειν, To bear my Father’s Anger. And Justin says of Lysimachus, He suffered the Cruelty of his King as patiently, as if he had been his Father. And in Livy, As the harsh Temper of our Parents, so also that of our Country, is to be softened by patient Suffering. So in Tacitus, [21] The Humours of Kings must be born. And in another Place, Good Emperors are to be desired, but whatsoever they [108] are, they must be obeyed. Claudian [22] ] commends the Persians, who obeyed their Kings, though cruel.

V. And by the Practice of the primitive Christians.V. Neither did the Practice of the [1] primitive Christians, the best Interpreter of the Law, deviate from this Law of God. For though the Roman Emperors were sometimes the very worst of Men, and there wanted not those, who under the Pretence of serving the State opposed them, yet the Christians could never be persuaded to join with them. In the Constitutions of Clement we have βασιλεία ο θεμιτν πανιστασθαι, It is not lawful to resist the King’s Authority. And Tertullian says in his Apology, [2] Whence are your Cassius’s, your Niger’s, and your Albinus’s? Whence those who besiege Caesar between the two Laurels? Whence those who wrestle with him only for an Opportunity of throttling him? Whence those who force the Palace Sword in Hand, Fellows bolder than so many [3] Sigerius’s (so the Manuscript in the Hands of those accomplished worthy Gentlemen Mess. du Puys expressly has it) and Parthenius’s? If I am not mistaken from among the Romans, that is, from among those who are not Christians. What he says of the Wrestling relates to Commodus’s Murder committed by a Wrestler, by the Order of Aelius Laetus, Captain of the Emperor’s Lifeguard; but there never was a wickeder Wretch living than that Emperor. Parthenius, whose Fact also Tertullian mentions here with Horror, was he who killed that worst of Emperors Domitian. To these he compares Plautian the [4] Captain of the Guard, who would have slain the bloody Emperor Septimius Severus in his own Palace. Piscennius Niger [5] in Syria, and Clodius Albinus in Gaul and Britain, took up Arms against this Septimius Severus, as if out of Zeal and Affection to the Commonwealth. But their Enterprize was also disappointed by the Christians, as Tertullian glories in his Treatise to Scapula: [6] We are reproached with Treason; but never could Christians be found to act the Albinians, or Nigrians, or Cassians. Those Cassians were they who followed Avidius Cassius, a Man of great Note, who took up Arms in Syria, under a Pretence of restoring the Commonwealth, which the Negligence of M. Antonin [7] was like to ruin.

Though [8] St. Ambrose was persuaded that Valentinian the second did him an Injury, and not only to himself, but to his Flock, and even to CHRIST, yet he would not take the Advantage of the People’s Inclination to resist; but said, [9] [109] Whatever Violence is offered me, I cannot resist; I can grieve, weep, and mourn. Against Arms, Soldiers and Goths, I have no other Arms but Tears, for these are the Defences of a Priest, in any other Manner I neither ought nor can resist. And presently after, I was commanded to appease the Tumult, I answered, it was in my Power not to stir them up, but that it was only in the Power of GOD to quiet them.Theodoret. Hist. Eccles. Lib. V. Cap. XIV. The same St. Ambrose would not make use of the Forces of Maximus against the same Emperor, though an Arian, and a great Persecutor of the Church. Thus Gre- [110] gory Nazianzen relates, that Julian the Apostate was diverted from bloody Designs (against the Church) by the Tears of the Christians, adding, [10] this was the only Remedy against Persecution. Yet his Army was almost all Christians. Besides, as the same Nazianzen observes, that Cruelty of Julian was not only full of Injustice towards the Christians, but had exposed the State to the utmost Danger: To which we shall add that of [11] St. Augustine, where he expounds those Words of St. Paul to the Romans, It is necessary for the Good of this Life, that we submit to the Sovereign Powers, and not resist if they should take any Thing from us.

VI. Inferior Magistrates to make War against the Sovereign unlawful, proved by Reason and Scripture.VI. There are some [1] Learned Men in this Age, who, suiting themselves to Times, and Places, first (as I think) persuade themselves, and then others, that what we have already said (in Relation to Non-resistance) takes Place only in Regard to private Men, but not in Regard to inferior Magistrates, who they think have Right to resist the Injuries of their Sovereign; nay, and that they fail in their Duty when they do not; which Opinion is not to be admitted. For as in Logick there is a middle Species, which with Respect to the Genus above it is still a Species, but in Respect of the Species below it,Genus speciale as Seneca calls it, Epist. LVIII. a Genus: So those Magistrates, in Respect to their Inferiors, are publick Persons, but in Respect to their Superiors, are but private Persons. [2] All the civil Power, that such Magistrates have, is so subject to the Sovereign,Averroes, V. Metaphys. com. 6. that whatever they do against his Will is done without Authority, and consequently ought to be considered only as a private Act. In a Word, according to the Maxim of Philosophers, which may be here applied, all Order necessarily relates to something that is First; and they, who think otherwise, seem to me to introduce such a State of Things as the Ancients fabled to have been in Heaven before there was a sovereign Majesty, when the lesser Gods did not submit to Jupiter. That Order [3] which I have spoken of, and παλληλισμς, Subordination, is not only apprehended by common Sense, as appears by the excellent [4] Sayings which we find on that Subject in Authors both Pagan and Christian; but it is also supported by divine Authority;1 Peter ii. 13. for St. Peter bids us be subject to the King, otherwise than to Magistrates; to the King as supreme, that is [5] without Exception, but only to those Things which GOD directly commands, who approves, and not forbids, our bearing of an Injury.Rom. xiii. 1. But to Magistrates as deputed by the King, that is deriving their Authority from him. And when St. Paul would have every Soul be subject to the higher Powers, he also included inferior Magistrates. Neither do we find among the Hebrews, where there were so many Kings regardless of all Right both divine and human, that any inferior Magistrates, among whom there were many pious and valiant Persons, ever assumed the Liberty to resist their Kings by Force, unless they had a special Commission from GOD, [111] who has a sovereign Power over Kings themselves; on the contrary,1 Sam. xv. 30. what the Duty of great Men is to their King, Samuel instructs us, who before the Elders and the People gave to Saul, though now governing wickedly, the usual Reverence.

And so likewise the State of the publick Divine Worship always depended upon the Will of the King, and the [6] Sanhedrim: For whereas, after the King, the Magistrates, together with the People, promised they would be faithful to GOD; that ought to be understood, [7] so far as it should be in the Power of every one of them. Nay, the very Images of their false Gods, which were publickly set up, were never thrown down, as we read, but at the Command of the People, when the Government was Republican, or of the King, when it was monarchical. And if Force was sometimes made use of against the Kings, it is related barely as a Fact that Providence had permitted, and without any Mark of Approbation.

Those of the contrary Opinion often urge that Saying of the Emperor Trajan, who delivering a Sword to a Captain of the Praetorian Band, said, [8] Use this for me, if I govern well; and against me, if ill. We must know, that Trajan (as appears by Pliny’s Panegy rick) took particular Care to shew no Marks of Royalty, and [9] to act merely as Head of the State, consequently subject to the Judgment of the Senate and People, whose Decrees the Captain of the Guard was to execute, even against the Prince himself: The like we read of M. Antoninus, [10] who would not touch the public Treasure without consulting the Senate.

VII. What is to be done in case of extreme and inevitable Necessity.VII. A more difficult Question is, whether the Law of Non-resistance obliges us in the most extreme and inevitable Danger. For some of the Laws of GOD, however general they be, seem to admit of tacit Exceptions in Cases of extreme Necessity; for so it was determined by the Jewish Doctors concerning the Law of their Sabbath in the Time [1] of the Maccabees; whence arose the famous Saying, [2] The Danger of Life drives away the Sabbath. And the Jew in Synesius gives this Reason for the Breach of the Law of the Sabbath,1 Maccab. ix. 10, 43, 44. σας π ψυχς θέομεν, we were in manifest Danger of our Lives, which Exception is approved of by CHRIST himself; as also in that Law of not eating the Shew Bread.Mat. xii. 4. And the Hebrew Rabbins, following an old Tradition, rightly add the same Exception to their Laws concerning forbidden Meats, and some others of the like Kind. Not that GOD has not a full Right to oblige us to do or not do some Things, even though we should be thereby exposed to certain Death; but that some of his Laws are of such a Nature as cannot be easily believed to have been given in so rigid a Manner, which ought still more to be presumed as to human Laws.

I do not deny, but that some Acts of Virtue may by a human Law be commanded, though under the evident Hazard of Death. As for a Soldier not to quit [3] his Post; but it is not easily to be imagined, that such was the Intention of the [112] Legislator; and it is very probable that Men have not received so extensive a Power over themselves or others, except in Cases where extreme Necessity requires it. For all human Laws are, and ought to be so enacted, as that there should be some Allowance for human Frailty. But this Law (of which we now treat) seems to depend upon the Intention of those who first entered into civil Society, from whom the Power of Sovereigns is originally derived. Suppose then they had been asked, Whether they pretended to impose on all Citizens the hard Necessity of dying, rather than to take up Arms in any Case, to defend themselves against the higher Powers; I do not know, whether they would have answered in the affirmative: It may be presumed, on the contrary, they would have declared that one ought not to bear with every Thing, unless the Resistance would infallibly occasion great Disturbance in the State, or prove the Destruction of many Innocents. For what Charity recommends in such a Case to be done, may, I doubt not, be prescribed by a human Law.

Some may say, that this rigorous Obligation to suffer Death, rather than at any Time to resist an Injury offered by the Civil Powers, is not imposed by any human but 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 of their own free Will, out of a Sense of the Inability of separate Families to repel Violence;1 Pet. ii. 13. whence the Civil Power is derived,Rom. xiii. 1. which therefore St. Peter calls a human Ordinance, tho’ elsewhere it is called a Divine Ordinance, because GOD approved of this wholesome Institution of Men. But GOD, in approving a human Law, is thought to approve of it as human, and afterahuman Manner.Adversus Monarchomachos, I. 3. c. 8. & I. 6. c. 23. & 24. Barclay, the stoutest Assertor of Regal Power, does thus far allow that the People, or a considerable Part of them, have a Right to defend them selves against their King, when he becomes excessively cruel; tho’ otherwise, that Author considers the King as above the whole Body of the People. I can easily apprehend that, the more considerable a Thing is which runs the Risk of perishing, the more Equity requires that the Words of the Law be restrained, to authorise the Care of preserving such a Thing. But I dare not condemn indifferently all private Persons, or a small Part of the People, who finding themselves reduced to the last Extremity, have made use of the only Remedy left them, in such a Manner as they have not neglected in the mean Time to take care, as far as they were able, of the publick Good.1 Sam. xxii. 2. — xxiii. 13. For David, who (bating some particular Facts) was so famed for living exactly according to Law, did yet entertain about him, first four hundred, and afterwards more, armed Men; and to what End did he so, unless for [4] the Defence of his own Person, in Case he should be attacked? But we must also observe, that David did not do this till he was assured by Jonathan, and many other infallible Proofs, that Saul really sought his Life: And moreover, he neither seized on any City, nor sought Occasions of Fighting, but lurked about, sometimes in by-Places, sometimes among foreign Nations; with this Resolution, to avoid all Occasions of injuring his own Countrymen.

The Example of the Maccabees might likewise be alledged here. For ’tis in vain that some pretend to justify their Enterprize, upon the Account that Antiochus was only an Usurper. In all History, we do not find that the Maccabees, and those of their Party, give Antiochus any other Title than that of King: And indeed they could not call him otherwise, since the Jews had for a long Time acknowledged the Kings of Macedonia for their Sovereigns, to whose Right Antiochus had succeeded. It is trueDeut. xvii. 15. the Law forbad a Stranger to be set over them; but that ought to be understood of a voluntary Election, and not of what the People might be forced to do through the Necessity of the Times. As to what others say, that [113] the Maccabees acted by Vertue of the Right which their Nation had to demand Liberty, or the Power of governing themselves, this Reason has no more Weight in it than the other. For the Jews having been formerly conquered by Nebuchadnezzar, were fallen by the same Right of War, under the Dominion of the [5] Medes and Persians, Successors of the Chaldeans; and the whole Empire of the Medes and Persians had passed to the Macedonians:See Justin. I. 36. c. 3. Hence Tacitus calls the Jews, [6] The most contemptible People that were conquered, whilst the East was under the Dominion of the Assyrians, Medes, and Persians. Neither did they obtain any Condition from Alexander, or his Successors, but without any Terms submitted to them, as they had before done to Darius. And tho’ they were sometimes allowed to use publickly their own Rites, and their own Laws, this was only a precarious Right, granted by the Favour of the reigning Princes; and not by Vertue of a fundamental Law of the Government. There is nothing then that could justify the Maccabees (in taking up Arms) but extreme and inevitable Danger, which might do it, so long as they kept within the Bounds of Self-Preservation, and like David, retired to secret Places for Security, without using their Arms unless first assaulted.

There is still another Caution to be observed here, which is, that even in such Extremity the Person of the Sovereign must be spared. Those who think that David spared Saul, not to discharge an indispensible Duty, but out of Generosity, founded on the Desire of arising to an extraordinary Degree of Perfection; those, I say, are certainly [7] mistaken: For David himself openly declared, that no [114] Man could be innocent,1 Sam. xxvi. 9. that stretched forth his Hand against the LORD’s Anointed. For he knew it was written in the Law, Thou shalt not revile the Gods, that is,Ex. xxii. 28. the Supreme Judges. Thou shalt not curse the [8] Rulers of thy People. In which Law special Mention being made of the supreme Powers, it plainly shews, that some special Duty is required. Wherefore OptatusLib. 2. Milevitanus, speaking of this Fact of David, says, GOD’s special Command, coming fresh into his Memory, restrained him. And makes David say, I was willing to overcome mine Enemy, but I chose rather to keep the Commands of GOD.

[9] To slander any private Person is not lawful, therefore of a King we must not speak Evil, [10] tho’ it be true. Because, as the Writer of the Problems (fathered upon Aristotle) says, κακηγον, &c. [11] He that speaks Evil of the Magistrate, offends against the whole Body of the People. But if we must not speak Evil of [115] him, much less must we use Violence against him. David was struck with Remorse, [12] 1 Sam. xxiv. 6. for having cut offa Piece of Saul’s Garment: So much did he regard the Person of a King as sacred! And indeed, the Sovereign Power being necessarily [13] exposed to the Hatred of many, he that is invested with it, ought in a particular Manner to be rendered venerable, and secured from every Sort of Insult. The Romans even secured the Authority of the Tribunes of the People, declaring their Persons [14] inviolable. Among the Sayings of the Essenes, this was one, [15] Kings are to be accounted sacred. And we find that famous Passage in Homer,

Πε γ δίε ποιμένι λαν,
Μ τι πάθοι.

[16] He was afraid lest any sad Accident should happen to [17] the Leader of the People. It is not without Reason, that Those Nations, who live under a monarchical Government, reverence the Name of Kings, as if they were Gods; as [18] Quintus Curtius observes. So Artaban the Persian, [19] Among many excellent Laws we have, this seems to be the best, which commands us to honour and adore our Kings, as the Image of GOD, who preserves all Things. And in Plutarch, of Agis, [20] ο θεμιτν οδ νενομεσμένον βασιλέως, &c. It is not permitted by the Laws of GOD or Man, to offer Violence to the Person of a King.

But here is a more difficult Question, Whether what was lawful for David and the Maccabees, may be lawful for us Christians, whose Lord and Master, CHRIST, so often bidding us [21] take up our Cross, seems to require from us a [116] greater Measure of Patience? Indeed when the higher Powers threaten us with Death for our Religion, CHRIST grants Leave to flee, especially to those whom the necessary Duties of their Calling tie to no particular Place; but [22] ] he allows nothing beyond Flight.1 Ep. ii. 21, &c. And St. Peter tells us, That CHRIST in Suffering left us an Example, that we should follow [23] his Steps, who did no Sin, neither was Guile found in his Mouth; who being reviled, reviled not again; when he suffered, he threatned not,1 Ep. iv. 12, &c. but committed himself to him that judge the righteously. Nay he bids us Christians give Thanks to GOD, and rejoice, when we suffer Persecution for our Religion. And it was this Constancy in Suffering, that chiefly contributed to the Establishment of Christianity, as appears from History.

Wherefore, I think that the primitive Christians, who, living near the Times of the Apostles, and of apostolical Men, understood and [24] practised their Precepts, better [117] than the Christians of following Ages, are very much injured by those who suppose that they rather wanted Power than Will to defend themselves, in imminent Danger of Death. Indeed Tertullian would have been very imprudent, nay, impudent, to have so confidently affirmed a Falshood to the Emperors, who couldnot be ignorant of it, writing thus, [25] If we had a Mind to deal with you as declared Enemies, and not only as secret Enemies, could we want Forces and Troops sufficient for such an Enterprize? The Moors, the Marcomanni, the Parthians themselves, or such other Nations, which, however great they be, are yet confined within a certain Extent of Country, and within the Bounds of their own Dominions; Do those Nations, I say, form a more numerous Multitude than we, who are spread over the whole World? We are but of Yesterday, in a Manner, and yet we already fill all Places in your Dominions, your Cities, Islands, Provinces, Castles, Towns; your very Camps, Tribes, Wards, Palace, Senate, Courts of Judicature, publick Places; and in a Word, we only leave you the Temples of your Gods. Disposed as we are to suffer ourselves so willingly to be butchered, what Wars should we not have been in a Condition to undertake, and with what Ardour should we not have engaged in them, however inferior we might have been in Forces, had we not been taught by our Religion, that it is better to be killed than to kill? Also Cyprian follows his Master, and thus declares, [26] Hence it is, that none of us, when apprehended, makes Resistance, or defends himself against your unjust Violence; tho’ our People are extremely numerous. The certain Hope of a future Vengeance produces in us this Patience. Thus the Innocent yield to the Guilty. And Lactantius, [27] For we confide in the Majesty of GOD, who is able as well to revenge the Contempt of himself, as the Hardships and Injuries done to his Servants. Wherefore we suffer inexpressible Miseries, and do not repine, but refer the avenging of them to the Almighty. St. Augustin had precisely in View the Case under Consideration, when he said, [28] A good Man should take Care above all Things not to engage in War, but when he may do it lawfully; for that is not always lawful. And again, [29] When Princes err, they presently make Laws to defend their Errors, to the Prejudice of Truth, by which the Righteous are tried, and crowned (with Martyrdom). And again, [30] So are Sovereigns to be endured by their Subjects, and Masters by their Servants, as that by suffering these temporal Things with Patience and Resignation, they may have just Reason to hope for Rewards that are eternal. Which he further illustrates by the Example of the primitive Christians. [31] Neither did the City of CHRIST, (tho’ it was then wandering and vagabond upon Earth, and had vast Numbers of People to assist it against its wicked Persecutors) fight for temporal Salvation, but chose rather to make no Resistance, that it might obtain an eternal one. They were bound, imprisoned, beaten, tormented, burnt, torn in Pieces, massacred, and yet they multiplied more and more. To fight for Safety, was, in their Opinion, nothing else than to despise this Life, in order to acquire another that is more excellent.

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Nor are the Observations of St. Cyril less admirable, upon that Passage in St. John of St. Peter’s Sword. The Thebaean Legion, as we read in the Acts of their Martyrdom, consisted of 6666 Soldiers, and all Christians. Who,Martignac. St. Maurice. when the Emperor Maximianus would have compelled the whole Army to sacrifice to false Gods, at Octodurum, first removed to Agaunum, and when the Emperor had sent one thither, to command them to come and sacrifice, and they had refused to do it; he sent Officers to put every tenth Man to Death, who easily executed his Order, no Man offering to resist.

Mauritius, [32] Commander of that Legion, (from whom the Town of Agaunum in Switzerland, was afterwards called St. Maurice) as Eucherius, Bishop of Lyons, records, thus spake to his Soldiers at that Time. How did I fear, lest any of you, under the Shew of Self-Defence (as it is easy for armed Men to do) should have endeavoured by Force to prevent their blessed Martyrdom? I was preparing, in order to divert you from that Design, to set before you the Example of JESUS CHRIST, who expressly commanded the Apostle to put the Sword into the Scabbard, which he had drawn in his Master’s own Defence; teaching us that all the Force of Arms is not able to shake Christian Constancy. This, I say, is what I intended to represent to you, that none of you, by employing a mortal Arm, should oppose the Glory of an immortal Action; and that, on the contrary, every one might finish with Stedfastness the Work he hath so happily begun. When, this Execution being over, the Emperor commanded the same Thing to the Survivors, as he had before done to the others, they all unanimously answered, Indeed, Caesar, we are your Soldiers, and we took up Arms in Defence of the Roman Empire, never has there been seen amongst us either a Deserter, or Traitor, or Coward: And we should willingly obey the Orders which you give us to Day, if the Christian Religion, in which we have been instructed, did not forbid us to worship Demons, or approach Altars always polluted with innocent Blood. We know you designed either to make Christians commit Sacrilege, or to frighten us, by the Example of those that have been decimated. But you need not search far off for People that do not conceal themselves: We are all Christians, and we declare it to you. Our Bodies are in your Power, but you cannot make yourself Master of our Souls, which are always turned towards CHRIST their Creator.

Then Exuperius, Standard-Bearer to that Legion, thus addressed them. You see me (brave fellow Soldiers) carry the Standards of secular Wars. But it is not to that Sort of War that I now call you; you have other Battles to fight: There are other Arms you ought to make Use of, to open the Way to the Kingdom of Heaven. And then he sent this Message to the Emperor, It is not Despair, the most powerful Resource in Dangers, that has armed us, O Caesar, against you. We have Arms in our Hands, [33] but we do not resist, because we rather chuse to die, than overcome, and to fall Innocents, rather than to live Criminals. And again, We throw away our Weapons, your Executioner shall find our Hands without Defence, but our Hearts armed with the Buckler of Christian Faith.

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After this followed the Slaughter of those Soldiers who suffered Death without Resistance, of which Eucherius gives this Account. [34] The Greatness of their Number did not secure them from Sufferings, though innocent; whereas even Criminals come off with Impunity, when numerous. We have the same Account of it in the old Martyrology. They were massacred on every Side, without saying a Word. They threw down their Arms, and presented their Throats and naked Breasts to their Persecutors. They took no Advantage of their great Number, nor made Use of the Arms they held in their Hands, to defend the Justice of their Cause at the Point of the Sword; but wholly taken up with this Thought, that they confessed the Name of him, who was led dumb to the Slaughter, and as a Lamb did not open his Mouth, they also like the innocent Flock of CHRIST’s Sheep, suffered themselves to be torn in Pieces by furious Wolves.

And when the Emperor Valens wickedly and cruelly [35] persecuted those Christians who according to the Holy Scriptures, and the Traditions of the Fathers professed CHRIST to be μοούσιον, of the same Substance, (with GOD his Father) though they were very numerous, they never defended themselves by Arms.1 Pet. ii. 21. Certainly where Patience is recommended to us in the new Testament, there we find [36] CHRIST’s own Example proposed to us (as we have just now read it was to the Thebaean Legion) for our Imitation; whose Patience reached even unto Death.Mat. x. 39. And he himself declares, that whoever loseth his Life in that Manner truly finds it. Thus having proved, that those who are invested with the sovereign Power,Luke xvii. 33. cannot lawfully be resisted; we must now admonish the Reader of some Things, lest he should think those Men transgress this Law, who really do not.

VIII. A free People may make War against their Prince.VIII. First therefore, Those Princes who depend on the People, whether they at first were established on that Foot, or their Authority was thus rendered subordinate by a posterior Agreement, [1] as in Sparta, if they offend against the Laws, and the State, may not only be resisted by Force; but if it be necessary, may be punished by Death, as it befel Pausanias [2] the Spartan King. Such was the Condition of the most ancient Kings of divers Countries in Italy; so that it is no Wonder, if Virgil having related the horrible Cruelties of Mezentius, adds,

[3] All Etruria, justly incensed and rising up in Arms against that King, required him to be immediately put to death.

IX. And against a King that has abdicated his Kingdom.IX. Secondly, If a King, or any other Prince, has abdicated his Government, or manifestly abandoned [1] it; after that Time, we may do the same to him, as to any private Man; but Negligence [2] in discharging the Functions of Government is not to be taken for a real Abdication.

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X. Or against a King that would alienate his Kingdom; but only to prevent the Delivery of it.X. Thirdly, If a King alienates his Kingdom; or renders it dependent on any other Power, [1] he forfeits the Crown, according to Barclay. For my Part, I dare not pronounce peremptorily in that Manner. For, when the Question is concerning a Kingdom, [2] either elective or successive, but conferred by a free Consent of the People, such an Act (of Alienation) is in itself void, and whatsoever is in itself void, can have no [3] effect of a Right.Lib III. Ch. XVI. Advers. Monarcho-mach. Upon this Principle Civilians maintain, that an Usufructuary to whom we have compared such Princes, if he yields up [4] his Right to any other than the Proprietor himself, does an Act that is of no Force: And this Opinion seems to me best founded. For, as to what is said, [5] that the Fruits and Profits revert to the Landlord; it must be [6] understood after such a Time when the Use and Profits were to terminate. Yet if a King should endeavour actually to deliver up his Kingdom, or to subject it to another, I doubt not, but in such a Case, he may be resisted. For Sovereignty (as I have said) is one Thing, and the Manner of holding it another. The People may hinder any Change in the latter; the Power of making such a Change not being comprehended in the Right of Sovereignty. To which we may fitly apply that of Seneca, in a Case not much different [7] Though our Father is to be obeyed in all Things, yet not in those, whereby he ceases to be a Father.

XI. Or against a King that behaves himself as an Enemy to the whole Body of the People.XI. Fourthly, The same Barclay observes, that if a King shall, like an Enemy, [1] design the utter Destruction of the whole Body of his People, he loses his Kingdom; which I grant. For the Design of Governing, and the Design of destroying [121] are inconsistent together. Wherefore he that declares himself an Enemy to the whole Nation, is presumed by that very Act to renounce the Government. But such an Excess of Fury [2] can hardly, in my Opinion, enter the Thoughts of a King, that is in his right Senses, and that governs only one Nation. But if he govern several, it may so happen, that in Favour to one, he should endeavour [3] to destroy another, in order to people the Lands of the former with Colonies sent from the latter.

XII. And against a King, who breaks the Condition, upon which he was admitted.XII. Fifthly, If a Kingdom be forfeited, either [1] for Felony against him of whom it is a Fief, or by vertue [2] of a Clause in the Act whereby the Sovereignty had been conferred, and which declares that if the King does such or such a Thing, his Subjects shall from that Time be absolved from all Allegiance to him, then also a King becomes a private Person.

XIII. And against a King, who having but one Part of the Sovereign Power invades the other.XIII. Sixthly, If a King should have but one Part of the sovereign Power, and the Senate or People [1] the other, if such a King shall invade that Part which is not his own, he may justly be resisted, because he is not Sovereign in that Respect. Which I believe may take Place, though in the Division [2] of the Sovereignty, the Power of making War fell to the King, for that is to be understood of a foreign War: Since whoever has a Share of the Sovereignty must have at the same Time a Right to defend it. And when the Case is so, the King may, by the Right of War, lose even his Part of the Sovereignty.

XIV. And against him, who grants such a Licence in certain Cases.XIV. Seventhly, If in the conferring of the Crown, it be expressly stipulated, [1] that in some certain Cases the King may be resisted; even though that Clause does not imply any Division of the Sovereignty, yet certainly some Part of natural Liberty [2] is reserved to the People, and exempted from the Power of the King. Now every one in alienating his Rights in Favour of another may do it under what Restriction he pleases.

XV. An Usurper, how far to be obeyed.XV. We have treated of him, who has now, or has had a Right to govern; it now remains, that we say something of him that usurps the Government; not after he has either by long Possession, or Agreement obtained [1] a Right to it, but so long as [2] the Cause of his unjust Possession continues. The Acts of Sovereignty exercised by such an Usurper may have an obligatory Force, not by vertue of his Right, (for he has none) but because it is very probable that the lawful Sovereign, whether it be the People themselves, or a King, or a Senate, chuses rather that the Usurper should be obeyed during that Time, than that the Exercise of the Laws and Justice [122] should be interrupted, and the State thereby exposed to all the Disorders of Anarchy. Cicero condemns Sylla’s Laws, as cruel upon the Children of the Outlaws, making them incapable of Honours; yet he thought they ought to be observed, affirming (as Quintilian [3] tells us) that this was so necessary, considering the Circumstances of the State at that Time, [4] that if they were abrogated it could not subsist. Florus also says of the Acts of the same Sylla: Lepidus endeavoured to repeal the Acts of that great Man, and not without Reason, if he could have done it, without great Hurt to the Commonwealth. And again, It was necessary for the State, then sick and wounded, to rest at any Rate, lest her Wounds should be ripped open in going about to cure it.

But in those Things, which are not so necessary for the public Good, and which contribute towards establishing the Usurper in his unjust Possession, if by disobeying we run no great Hazard, we must not obey. But the Question is, whether it be lawful to depose such an Usurper, or even to kill him.

XVI. An Usurper may be killed during the War, if no Contract be made with him.XVI. And First, If he has seized on the Government in Consequence of an unjust War, and which had not all the Qualities required by the Law of Nations, and if no Treaty has been made afterwards, [1] or any Oath of Fidelity taken to him; in a word, if he has no other Title to Possession, than mere Force, the Right of War seems to continue intire, and [2] consequently what may lawfully be done against an Enemy, may be lawfully attempted against him, whom any private Man may kill. Against Traitors and publick Enemies every private Man (says [3] Tertullian) is a Soldier. So against Deserters, [4] any Man is allowed by the Roman Law to take Revenge, in the Name of the Publick, for the common Safety.

XVII. By vertue of an antecedent Law.XVII. I think, with [1] Plutarch, the same may be said of him, who has usurped the sovereign Authority in a State where there was already a Law, impowering any Person to kill him, who should do such or such a Thing, visible and manifestly designed: as for Example, if a private Man should go with a Guard about [123] him, should assault a Fort, or kill a Citizen uncondemned, or illegally condemned, or presume to create a Magistrate without being elected by legal Votes. Many such Laws were extant in the States of Greece, with whom it was reputed lawful to kill such Tyrants. Such was [2] Solon’s Law at Athens, after the Return from the Piraeus, against such as should abolish popular Government, or after its being abolished, should exercise any publick Office. And such was the [3] Valerian Law at Rome, if any one bore an Office without the Order of the People; and the Consular Law, after the Decemviral Government, [4] that no Man should create a Magistrate without an Appeal; and he that did it might lawfully be killed.

XVIII. By his Commission who has a Right to the Crown.XVIII. Nor will it be less lawful to kill an Usurper if there be an express Order for it from the lawful Sovereign, whether King, People, or Senate. The Guardians of the Heir to the Crown have the same Right; and it was by Vertue of that Right, that Jehoiada drove Athalia from the Throne, which belonged to his Pupil Joash.

2 Chron. xxiii.XIX. 1. Unless in one of these Cases, I do not see how it can be lawful for any private Man, either to dethrone or kill an Usurper.XIX. Why an Usurper is not to be killed, but in these Cases. Because it may be, he that has the true Right, had rather leave the Usurper in quiet Possession, than engage his Country in dangerous Troubles and bloody Wars, which generally follow the expelling, or killing such Men, especially if they have a strong Faction at home, or powerful Friends abroad. It is at least uncertain, whether the King, or Senate, or People, to whom the sovereign Authority lawfully belongs, would be willing that Matters should be brought to that dangerous Extremity; and whilst their Mind on that Head is not known, all Force would be unjust. Favonius said [1] χεον εναι μοναχίας νόμου πόλεμον μύλιον, A Civil War is worse than the Necessity of submitting to an unlawful Government. And Cicero, [2] Any Peace is preferable to a Civil War. And T. Quintius Flaminius, [3] that it was [4] better to leave Nabis Tyrant [124] of Lacedemon, in Possession of the Government, than to ruin that City by endeavouring to restore its Liberty. To this Purpose was the Advice of [5] Aristophanes, not to nourish a Lion in the City, but if he were nourished, to bear with him.

2. It is certainly a Matter of the utmost Consequence, to determine [6] whether we ought to continue quiet, or endeavour at any Rate to recover Liberty; as Tacitus speaks. And Cicero calls it, [7] A difficult Question in Politicks, whether when our Country is opprest with Tyranny, we may endeavour to rescue it, tho’ with the extreme Hazard of the State. Therefore private Persons must not setup for Judges in such an Affair, that concerns the whole Body of the People. So that there’s great Injustice in this Expression,

[8] Detrahimus dominos urbi servire paratae.

We take up Arms [9] to free the City from Tyrants, to whose Yoke it is ready to submit. As there is also in that Answer of Sylla, who being asked, [10] why he came into his Country so armed; replied, to deliver it from Tyrants.

3. Plato, [11] and after him Cicero, [12] lay down a more reasonable Maxim, Do not meddle, say they, in what concerns the Government, but so far as you can promise yourself the Approbation of your fellow Citizens; offer no Violence either to your Father or your Country. To the same Sense is that of Sallust: [13] For tho’ you could govern your Country, or Parents, by Force, and correct Offences, yet it is an odious Enterprize, especially when all Changes of Government are generally attended with Slaughter, Banishments, and other Miseries of War. Not much different is that of Stallius in Plutarch, in the Life of Brutus, [14] It is not fit for a prudent and wise Man to expose himself to Dangers and Troubles for Knaves and Fools. To which we may refer that of St. Ambrose, [15] This also will gain you Reputation, to rescue the Poor out of the Hands of the Oppressor, to deliver the Condemned from Death, as far as you can do it without occasioning Troubles and Disorders, lest otherwise you should seem to have done it more out of Ostentation than Compassion, and so cause greater Wounds than those you propose to cure. Thomas Aquinas said,Secund. Secund. Quaest. 42. Art. 11. that one becomes sometimes guilty of Sedition, by attempting to destroy even a tyrannical Government.

4. The Fact of Ehud, against Eglon King of Moab, should not move us to the contrary Opinion; for the Scriptures positively tell us,Judges iii. 15. that GOD raised up Ehud to deliver Israel, that is, by giving [16] him a special Commission for that Purpose. Neither is it certain,Neh. ix. 27. [17] that this King of Moab had not by Agreement any Right of Sovereignty; for GOD did execute his Judgments even against other lawful [125] Kings,2. Kings ix. by such Instruments as he himself pleased, as by Jehu against Jehoram.XX. In a controverted Right no private Man to be Judge.

XX. But especially in a controverted Right, no private Person ought to determine; for then he ought to side with Possessor. Thus CHRIST commanded us to pay Tribute to Caesar, because the Money had his Image or Superscription;Matt. xxii. 20. that is, because he was then in Possession of the Government; for the Power of Coining Money is a certain Sign of Possession.P. Bezar. Hist. Genuens. I. 18.

CHAPTER V↩

Who may lawfully make War.

I. The Efficient Causes of War are those who engage in it, either upon their own Account, as Principals:I. As in other Things, so also in moral Actions, there are wont to be three Efficient Causes, Principals, Assistants, and Instruments. The principal Efficient Cause in a War, is generally the Person interested. In a private War a private Person; in a publick, the Civil Power, especially the Supreme. Whether a War may be justly undertaken in Behalf of another, not making War, shall be treated of in [1] another Place. In the mean Time this is most certain, that every Man has a natural Right to revenge himself; and therefore were Hands given us.

II. Or upon the Account of others as Assistants:II. 1. But it is not only lawful for us, as far as we are able, to be beneficial to another, but also commendable. They who write of Offices, justly say, that there is nothing so useful to one Man, as another Man. Now there are several particular Ties, which engage Men mutually to assist each other.Diges. I. 18. Tit. 7. De Servis exportand. Leg. 7. De furtis, I. 7. & Cod. I. 10. tit. 1. De jure fisci. Cic. de Off. I. 11 ex Panaetio. Bartol. ad Dig. I. 1. tit. 1. De Just. & jure n. 7, 8. Kinsmen assemble to help one another: Neighbours and Fellow-Citizens call for [1] the Aid one of the other, whence comes that Saying, Porro Quirites and Quiritari. Aristotle [2] said it behoved every one to take up Arms, either to defend himself upon an Injury offered him, or for his Kinsmen, or Benefactors, or Allies. And Solon [3] declared that a happy State, wherein every Man looked upon the Wrongs done to another, as done to himself.

2. But tho’ there were no other Obligations, it is enough that we are allied by common Humanity. For every Man ought to interest himself in what regards other Men. It was well said of Menander, [4] Jas. ib. n. 29. Cast. ad Leg. I. § 4. ib. Bartol. ad Dig. 1. 49. Tit. 15. De Capt. &c. Leg. 24. n. 9. Innoc. ad C. sicut De Jure jur. & in C. olim De restit. Spol. n. 16. Panorm. n. 18. Sylv. in verbo Bellum, Q. 8.

Injuriarum, si improbis, &c.

If every one would heartily engage in the Defence of those that are insulted; if Men would look on Injuries done to others, as done to themselves, and would strenuously assist one another; the Wicked would not become daily more bold and enterprising, but finding themselves watched on every Side, and suffering the just Punishment of their Crimes, few or none would run the Hazard of it. And this of Democritus, [5] It is every Man’s Duty to the utmost of his Power, to assist the Injured, and by no Means to neglect it; for this is just and good: Which Lactantius thus expresses, [6] GOD, who has denied Wisdom to all other Animals, has furnished them with such natural Arms, as may secure them from Insults and Dangers. But as he made Man naked and weak; chusing rather to adorn him with Wisdom, than endow him with Force; [126] he has given him, amongst other Things, a Sentiment of Affection, which prompts him to defend those of his own Species, to love them, to cherish them, to give to them, and receive from them Assistance against all Dangers whatsoever.

III. Or are Instrumental, as Servants and Subjects.III. By Instruments, we mean not Arms, nor such like Things; but certain Persons who act by their own Will, but yet so as that their Will depends on another, that sets it in Motion: Such is a Son to his Father, being part of himself naturally; or a Servant, as a Part of his Master by Law. For as a Part is not only a Part of the Whole, in the same Relation as a Whole is the whole of a Part,Cod. de Agricolis, 1. 11. & 1. 9. de Adulter. Sen. I. Con. 4. Arist. Eth. Ni. com. v. 10. p. 67. Ed. Paris. but that very Thing which it is, because of the Whole on which it depends: [1] So the Thing possessed makes in some Manner part of the Possessor. [2] Democritus said, Servants are to be used as Members of our Body, some to one Purpose, and some to another. As a Servant is in a Family, the same is a Subject in a State, and is therefore the Instrument of the Sovereign.

IV. By the Law of Nature none are excused from War.IV. Nor can we doubt, but all Subjects may naturally be employed in War, tho’ some special Laws may exempt some; as formerly [1] Slaves among the Romans, and now every where the [2] Clergy; which Law not-withstanding withstanding, as all others of that Nature, must be understood with the Exception of Cases of [3] extreme Necessity. Let this suffice to be spoken of Assistants and Subjects in general.Thomas, Sec. Sec. 40. Art. 2. Sylvest. de Bell. p. 3. For what Questions particularly relate to them, shall be handled [4] in their proper Places.

The End of the first Book.

Endnotes for Book I↩

[1] See Pufendorf, Law of Nature and Nations. B. I. Chap. I. § 8. Note I.

[2] Such were the antient Patriarchs, who lived in Tents, and travelled from Place to Place, without forming a Community or depending on any Government; though there were civil Societies already established in the World at that Time. The learned Gronovius on this Place, alledges the Example of the Aborigines, the first Inhabitants of Italy, and of several People in Africa; The Aborigines, a savage People, free and independent, without Laws or Government. Salust. Bell. Catil. Cap. VI. The Getulians and Libyans, a rough and uncivilized Set of Men, were the first Inhabitants of Africa... they lived without any Government or Laws, or the least Measures of Discipline among them. Idem Bell. Jugurth. Cap. XXI. Edit. Wass. They (the remote Inhabitants of Cyrenaica) being scattered about the Country in Families, and living under the Direction of no Law, had no common Regulations. Pomponius Mela, Lib.I.Cap. VIII. Num. II. Edit. Voss. We find even at this Day amongst the Arabians, and Africans several Nations of Savages, and Vagrants, without Laws, Magistrates or any Form of Government.

[3] See B. II. Chap. XI. § 1. Num. 5.

[4] II. For since there are two Ways of disputing Things, one by Debate, the other by Force, &c. De Offic. Lib. I. Cap. XI. See Pufendorf. B. V. Chap. XIII. where he treats of other Ways of deciding Differences in the independent State of Nature.

[5] Philo the Jew considers as Enemies not only such as actually attack us by Sea or by Land, but also those who make Preparations for either, those who erect Batteries against our Ports, or Walls, though no Battle is given. De Specialib. Lib. II. p. 790. Edit. Paris. Servius, on Verse 545, of the first Book of the Eneid.

——— Quo justior alter
Nec pietate fuit, nec bello major & armis.

Makes this Remark. This is not an idle Repetition; for the Word Bellum, (War) includes Counsels, and Measures, taken against the Enemy; that is a Skill in Military Affairs. Whereas the Word Arma, (Arms) is used only to express the very Act of employing Forces: thus the former relates to the Mind, the latter to the Body. The same Commentator, on Verse 547. of B. VIII. says: Bellum is the whole Time employ’d in making the necessary Preparations for fighting or in Acts of Hostility: and Praelium denotes an actual Engagement. Grotius.

[6] For not only those who are at War, stand in several different Relations to other Persons, who observe a Neutrality, by Vertue of which they do many Things that by no Means relate to a State of Hostility: but they also may and frequently do act towards each other, as if they were not Enemies; so that in such Cases the Use of Force, and the Laws of War are suspended. This takes Place when two Enemies enter into an Agreement, or Treaty; as the Author shews at large in the proper Place. Gronovius, in a Note on this Place, and Huber De jure Civitatis, Lib. III. Sect. IV. Cap. IV. §. 2. allow of no Difference in the Main between Cicero’s Definition, and that given by our Author. It is sufficient however, if the latter is more clear and extensive than the former. Obrecht, in his Dissertation De ratione Belli (which is the eighth in the Collection published in 1704.) has defended our Author’s Definition against the mistaken Criticisms of some Commentators.

[7] Our Author, giving the Etymology of πόλεμος, derives it from πολυς ; while others search elsewhere for the Origin of that Word; nor are we to be surprised at this. The Country of Etymologies is of a very large Extent, and affords great Numbers of different Roads, where each Man may walk at his Ease. However, in Complaisance to those who delight in such Enquiries, and for the Sake of clearing up our Author’s Meaning, we must say something on the last Words of this Paragraph, which stand thus in the Original: Veteribus etiam λύη dissolutione, quomodo & corporis dissolutio δύη. Here the Commentators are silent, not excepting Gronovius, a Critic by Profession; who only explains δύη by other Greek Words, signifying any Sort of Unhappiness. But this neither shews the Reason of our Author’s Etymology, nor his Application of it. At first sight it might be imagined that the Text is faulty; and I know some have been of Opinion, that λύη ought to be repeated in this Place; but we find δύη in all the Editions of this Work; and I firmly believe I have found out what our Author Means, and what induced him to propose the Etymology of this Word, which he tacitly derives from δύω. He took δύη in the Sense which some Lexicographers give to λύπη, dolor; and at the same Time was thinking of Plato’s Etymology of λύπη, Pain, which he derives from λύω, to dissolve; because, says he, when we suffer Pain, the Body suffers a Dissolution; in Cratylo, p. 419. Vol. I. Edit. H. Steph. Our Author in Imitation of that ancient Philosopher, derives δύη from δύω for the same Reason; for on a Separation of the Parts of the Body, it follows that those which before appear’d only as one continued whole, by their Union, become more than one. The Principles of the old Philosophy, in which our Author was educated, helped him moreover to form this Etymology; for we know that according to those Principles, Pain is caused by a Dissolution of Continuity.

[8] See, for Example, Horace B. I. Sat. III. v. 107. and Terence Eunuch. Act. I. Scen. I. v. 16.

[9] The Author gives Instances of this B. II. Chap. XVI. § 9.

[10] III. De Officiis. Lib. III. Cap. V.

[11] I have quoted this Law in my first Note on § 14. of the Preliminary Discourse.

[12] De Ira. Lib. II. Cap. XXXI.

[13] In Ep. XLVIII. he says thus: We ought to observe carefully and religiously the Laws of this Society, which unite us all together, and teach us that there is a Law common to all Mankind. The Reader may likewise see what S. Chrysostom says on this Subject on 1 Cor. Chap. XI. v. I. Grotius.

[14] Καθ’ πεοχν. But the Philosopher makes this Distinction with Regard to Friendship, which is the Bond of Societies. The Friendships already mention’d therefore, are founded on Equality....But there is another Sort of Friendship, established on Preeminence, such as that between Father and Son, the Elder and the Younger, Husband and Wife, and between every Prince and his Subjects. Ethic. Nicom. B. VIII. Chap. VI. VII.

[15] Concerning this Society, see Philo the Jew, on these Words ξένηψε Νε Noah awaked (from his Wine) p. 281, 282. Edit. Paris. Plutarch also has something on the same Subject in his Life of Numa. p. 62. Edit. Wech. Vol. I. Grotius.
I am surprised that our Author has not quoted the following remarkable Passage of Cicero, which is much more express, and more to his Purpose than those, to which he refers us. Since therefore nothing is more excellent than Reason, which is common to God and Man, the first rational Society is between God and Man. For where there is a Participation of Reason, there is also a mutual Participation of right Reason. Now this being a Law, we are to conclude a Society between the Gods and Men founded on Law. Farther, where there is one common Law, there is likewise a common Right; and those who hold these in common, are to be esteem’d, as it were, fellow-citizens. De Legib. Lib. I. Cap. VII. But, properly speaking, there is no Law, or Right common to God and Man. See Pufendorf B. II. § 3. and Chap. III. § 5, 6. As also Mr. Thomasius’s Dissertation call’d, Philosophia Juris, de Obligat. & Action. which is the third in the Collection printed at Leipsic. Cap. I. § 8, &c.

[16] This Restriction is to be carefully observed. For, as Ziegler very well remarks on this Place, in all Dealings between a Superior and an Inferior, independently of the Relation of Superiority, the Right of Equality takes Place, as amongst Equals; thus, for Example, Contracts between a Prince and one of his Subjects require no other Rules than those which ought to be observed between two private Persons. When a Merchant has sold his Goods to his King, the King is as much obliged to pay for them, on the Terms, and at the Time agreed on, as the meanest Purchaser. To which I add, that there are some Cases, wherein a Superior becomes in certain Respects the Inferior; and that then the Right of Superiority is changed in Regard to the same Persons, according to the Nature of the Things. Thus a Magistrate is bound to honour his Parents, and consequently to submit to their Will to a certain Degree, whenever the Administration of publick Affairs is not concern’d; but, in the Character of Magistrate, he is to have no Regard for the Will of his Parents, but may even command them. See B. II. Chap. V. § 6. Note I.

[a] Jus Rectorium.

[b] Jus Equatorium.

[17] IV. See Pufendorf, B. I. Chap. I. § 19, 20.

[18] See the same Author, B. IV. Chap. VIII.

[19] Such, for Example, is the Power of a Father over his Child, the Right of a Husband over his Wife, the Usufructuary Right and the Right of demanding the Performance of a Promise, by which a Man has personally engaged himself, &c.

[20] Thus the Right of Passage, belonging to the Proprietor of a Country House in the Neighbourhood, is inherent only in the Possessor of the said House, and is transmitted to all, who shall possess the same, till that Right is extinct.

[21] Perfect Right, is that which we may assert by Force, and the Violation of which is a Wrong properly so called. Whence it is easy to judge what is Imperfect Right. See Pufendorf, B. I. Chap. I. § 7. and our Author, B. II. Chap. XXII. § 16.

[22] V. As when we say, Suum cuique tribuendum est, we must give every Man his own.

[23] Hence the Roman Lawyers very well called this Liberty Facultas. Grotius. This Definition occurs twice in the Body of the Law: Libertas est naturalis Facultas ejus, quod cuique facere libet, nisi quid Vi, aut Jure, prohibetur. Digest. Lib. I. Tit. V. De statu Hominum. Leg. V. and Instit. Lib. I. Tit. III. De Jure Personarum, §1. In order to understand it thoroughly, it will be proper to read Mr. Noodt’s excellent Commentary on the first Part of the Pandects, p. 29. See Pufendorf’s Remark on the Manner, how this natural Power of Man over himself is to be understood. B. I. Chap. I. § 19.

[24] The Scholiast on Horace says the Word Jus is taken for Property or a Right to a Thing. Jus pro Dominio. Grotius.
Our Author probably had the following Passage in View:

Permutet Dominos, & cedat in altera Jura.

Lib. II. Ep. II. v. 174.

On which the Scholiast says: In altera Jura, id est, in alterius Dominium.

[25] See Pufendorf. B. IV. Ch. IV. § 2.

[26] Ut Ususfructus, Jus Pignoris, says our Author. As these Words stand, they insinuate that the Usufructuary, and the Creditor have a Sort of Right of Property, though imperfect, the former to the Goods in his Possession by vertue of his Tenure, the latter to the Thing pledged in his Hands for Security of the Debt. But, if we reason conformably to the Ideas of the Law of Nature, neither of them has any such Right, of Property, properly so call’d. The whole Matter is, that the Enjoyment of the Goods by the Usufructuary, till the Time of the Tenure is expired; and the Detention of the Pledge by the Creditor till he is pay’d, renders the Property imperfect, of which the Master of the said Things, who remains solely such, has not all the Profits, or full Exercise, during that Time. But our Author had the Niceties of the Roman Law in View, which allows an Usufructuary Creditor, &c. a real Action for recovering the Possession of another Man’s Goods, in the same Manner as if they were the real Proprietors of them; and thus they are often considered as such, and the Right to them near to that of Property: Jus dominio proximum, say the Interpreters.

[27] Creditum: Debitum. Short, and very proper Expressions, taken from the Roman Law. See what I have said on Pufendorf B. I. Chap. I. § 20. Note 3. of the second Edition: and B. V. Chap. XI. § I. Note 5. The learned Gronovius, without Reason, restrains the Terms in Question to Contracts of Loan, properly so called. It is surprising, that he did not observe, that our Author here imitates the Language of the Roman Lawyers; and the more so, because some other Commentators, much less skill’d in Criticism, have perceived this Allusion. In my Opinion it may be affirm’d, without the least Hesitation, that by the Word Creditum, we are here to understand, not only the Right a Man hath to demand what is due to him by Vertue of some Contract, Bargain, Promise, or Law; but also the Right we have to require Satisfaction for any Damage or Injury received; all which is included in the Idea affix’d to that Word by the Roman Lawyers. Creditorum Appellatione non hi tantum accipiuntur, qui pecuniam crediderunt, sed omnes, quibus ex qualibet causâ debetur, utsicuiexempto, vel ex locato, vel ex alio ullo debetur: Sed etsi ex delicto debeatur, mihi videtur Creditoris loco accipi. Digest. Lib. I. Tit. XVI. De verborum, & rerum signif. Leg. XI, XII. See B. II. Chap. I. § 2. and Chap. XVII. § 1. I believe our Author goes still farther, and extends the Word Creditum to the Right of punishing, and that of Debitum to the Obligation of submitting to condign Punishment. I am induced to think so, because first the Perfect Right, to which the Debitum & Creditum in Question relate, answers to the Law of Nature, or Natural Right, properly so called, of which the Author has spoken in his preliminary Discourse, § 8. Now one of the general Rules of that Law is, that those who violate its Maxims, deserve to be punished. See what I have said on § 10, Note 7. It is very probable therefore, that our Author, while he was enumerating the several Things which may be required in Rigour, would not forget the Punishment of Criminals. Secondly, because he elsewhere actually ranks Debitum ex poena, or poenale among those things, which we may demand of another in Rigour. B. III. Chap. XIII. § 1, 2. and makes a Right to punish belong to Justitia expletrix, which is the Matter of Perfect Right. B. II. Chap. XX. § 12.

[28] VI. This takes in all those Rights, natural or acquired, with which each Man is invested, independently of the Relation of a Citizen, or Member of the State. The Author produces Examples of this kind which are sufficient for making the Matter clear and intelligible. See what he says concerning Promises, B. II. Chap. XI. § 8. and Chap. XIII. § 20.

[29] Because the Design and Good of civil Society necessarily require, that the natural and acquired Rights of each Member should admit of Limitation several Ways and to a certain Degree by the Authority of him or them, in whose Hands the sovereign Authority is lodged.

[30] So that a Subject ought to obey his Prince preferably to his Father and his Master. And the Prince may allow a Father and a Master more or less Power over their Children, and Slaves, as he shall judge most conducive to the Public Good. See B. II. Chap. V. § 7, and 28.

[31] This is the Observation of Philo the Jew, who says: Certainly Silver, Gold, and all other valuable Things, which Subjects treasure up, belong more to those who govern, than to those in Possession of them, πε υτουγίας (of Noah’s Planting.) p. 222. Edit. Paris. Pliny the younger declares, that a Prince, to whom the Possessions of every one of his Subjects belong, is as rich as all of them together. Paneg. Cap. XVII. And a little after: What does Cesar see, that is not his own? See John of Salisbury in his Polycrat. Lib. IV. Cap. I. p. 335. Edit. Lugd. 1639. Grotius.
The latter Passage of Pliny is not rightly quoted or applied, for the Panegyrist says the direct contrary, in commendation of Trajan, Est quod Caesar non suum videat, &c. That Caesar sees something which is not his own; and that the Prince’s Empire is now larger than his Patrimony. Cap L. Num. 3. Edit. Cellar. Besides, there is some-what what extravagant, or at least too figurative, in the Expressions of the antient Writers, quoted by our Author, as well as in those of the Moderns, who imitate them. For, strictly speaking, the Goods of each Subject belong no more to his own Sovereign than to a foreign Prince. The whole Truth of the Matter is, that in case of a pressing Necessity, the Sovereign may, for the publick Advantage, dispose of the Goods of his Subjects, even against their Will, in the same Manner as if they were his own. But he then acts, not as Proprietor of such Goods, but as Head of the Society, in favour of which every one of its Members is engaged, either expressly or tacitly, to make such a Sacrifice. See what is said, B. I. Chap. III. § 6. Num. 4. B. II. Chap. XIV. § 7 and B. III. Chap. XX. § 7.

[32] And consequently, the Sovereign may discharge a Debtor from the Obligation of paying, either for a certain Time, or forever, if the publick Good requires it. We have an Example of this in Livy, Lib. XXIII. Cap. XIV. Num. 3. which is here produced by Gronovius. After the fatal Battle of Cannae; Marcus Junius Pera, the Dictator ordered publick Notice to be given, that he would pardon all who had been guilty of capital Crimes, and exempt from Payment all such as were in Chains for Debt, if they would list under him.

[1] ξία. The Philosopher uses this Word when he treats of Distributive Justice, by Vertue of which we are to give every one what is due to him, according to his Merit. Ethic. Nicom. B. V. Chap. VI. But I find that Cicero uses the Latin Word Dignitas, which answers to the Greek ξία, in a large Sense, including both perfect and imperfect Right: His Words are, Justitia est habitus animi, communi utilitate conservata, suam cuique tribuens Dignitatem. De Invent. Lib. II. Cap. LIII. And the Author of a Treatise on Rhetorick, ascribed to that great Orator and Philosopher, makes Justice consist in rendering to every one his due, (Jus) according to his Merit, (pro dignitate cujusque) Ad Heren. Lib. III. Cap. II. Huber, in his Treatise De Jure Civitatis, and his Praelect. in Institut. & in Pandect. quotes these two Passages wrong, as if he had read quae cuique jus suum & dignitatem tribuit; and on the sole Authority of this false Quotation, he pretends that Cicero expresses perfect Right by the Term Jus, and imperfect Right by Dignitas.

[2] Cicero has given us an Example of several Degrees of Merit and Fitness, which confer more or less of this imperfect Right; which I shall here set down, translated from the Author’s Note on this Place.
But if there be any Dispute or Enquiry, to whom we are obliged to render most Service, let our Country and our Parents, to whom we stand most indebted, hold the first Rank. Next to these are our Children, and our whole Family, who depend on us alone, and can have no other Refuge. In the next Place we must think of our Relations, with whom we live in a good Understanding, and whose Fortune is most commonly united with our own. The necessary Supports of Life are therefore principally due to those whom I have already mentioned. But living in Society, giving Advice, Conversation, Exhortations, Consolations, and sometimes even Reproofs, take Place chiefly in Friendship. De Offic. Lib. I. Cap. XVIII. See B. II. Chap. VII. § 9, 10. of this Treatise. Seneca, speaking of Wills, says, We look out for Persons of the greatest Worth, (or Merit, dignissimos) to whom we may leave our Estates. De Benef. Lib. IV. Cap. XI. See St. Augustin, DeDoctr. Christ. Lib. I. Cap. XXVIII. and XXIX. Grotius.

[1] Our Author’s Criticism in this Place, has been justly censured, for the Word συνάλλαγμα, according to Aristotle’s Sense of it, expresses all Dealings Men may have one with another, and in which any Inequality appears that ought to be redressed by the Exercise of the Species of Justice in question. The Philosopher, (Ethic. Nicom. Lib. V. Cap. V.) distinguishes these συναλλάγματα into voluntary, by which he understands Contracts properly so called, as those of Sale, Loans, Bail, Trusts, Hiring, &c. and Involuntary, under which he comprehends all Sorts of Damage and Injuries done to another; either clandestinely, or by open Violence; in short, what the Roman Lawyers call Delictum, and which the learned Gronovius improperly compares to Quasi contractus, which, according to them, Non ex maleficio substantiam capiunt Institut. Lib. III. Tit. XXVIII. The same Commentator (in order to shew, that the Example of a Person in possession of another Man’s Goods may relate to Aristotle’s Permutative Justice) observes, that ever since the Establishment of Property, there has been a tacit Agreement among all Men, by which each of them is obliged to restore the Goods of another. This is a false Principle, laid down by our Author himself, B. II. Chap. X. § I. in which he has been followed by Pufendorf, B. IV. Chap. XIII. § 3. I have confuted them both, in my Note on the Passage of the latter, here referred to. I am not therefore surprized that Gronovius grounds his Argument on it; for besides that he had a better Talent at commenting on the Thoughts and Expressions of others, than at examining and considering Subjects of this Nature, he thus found an Argument ad hominem, against Grotius, in favour of his dear Aristotle. But it is very strange that he has not added a Remark, very proper for supporting his Criticism, and the more so, as it depends on a grammatical Nicety, viz. that the Word συνάλλαγμα does not signify the Foundation of the Obligation arising from the Justice under Consideration, but only the Object or Matter on which this Sort of Justice is employed, which Aristotle therefore calls, Δικαιοσύνη, or Δίκαιον, τ ν τος συναλλάγμασι διοθώτικον, Lib. V. Cap. V. and γίνεται ν τος συναλλάγμασι κα τος κουσίοις κα τος κουσίοις Cap. VII. that is, corrective Justice in Mans Dealings one with another, or barely corrective Justice, a Term which Interpreters would have done well to preserve, as much more expressive of the Philosopher’s Sense than that of commutative Justice, which conveys a very different Idea. Thus when our Author says, it is not by Vertue of a Contract, (κ συναλλάγματος) that the Possessor of another Man’s Goods is obliged to restore them, it makes nothing against Aristotle, according to whose Principles, συνάλλαγμα is here a Detention of what belongs to another; but the Obligation of restoring, is founded on an In equality subsisting to the Prejudice of the Proprietor, an In equality which the Justice under Consideration requires to be redressed. To which it may be added, that Aristotle’s Corrective or Permutative Justice, does no more answer exactly to our Author’s Expletive Justice, than the Distributive Justice of the former does to the Attributive Justice of the latter, and that there is a wide Difference between those two Distinctions, both in regard to their Foundation, and the Extent of each particular Member. But all this is of little Consequence in the Main, and it would be better to leave the Philosopher with his Division, which besides that it is very defective, is useless at present, as several Authors have observed. See Pufendorf, B. I. Chap. VII. § 12. Mr. Thomasius’s Institutiones Juris Divini, Lib. I. Cap. I. § 106: As also the Principia Juris, secundum ordinem digestorum; by Mr. Westenberg, Professor at Franeker, Lib. I. Tit. I. § 15, &c.

[2] πανοθωτική Ethic. Nicom. Lib. V. Cap. VII. p. 65. Edit. Paris. Vol. II. Or, as Aristotle more frequently calls it, Διοθωτική.

[3] It is not the same Thing. See Note 1. on this Paragraph.

[4] For the Justice in question regulates the Exercise of those Virtues, which consist in doing such Things in favour of others, as cannot in Rigour be demanded, and directs a proper Application of the Acts of those Virtues, by a prudent choice of Persons the most worthy, to feel the Effects of them. See the second Note on Paragraph 7th, and what has been said in the Preliminary Discourse, § 10, and the Notes of that Place; as also our Author, B. II. Chap. I. § 9. Num. 1.

[5] The Author has here in view, chiefly the Distribution of Rewards and publick Employments; for tho’ the Prince on such Occasions ought to prefer Persons of most Merit, and greatest Abilities, no private Person can in Rigour demand this Preference. See Pufendorf, B. I. Chap. VII. § 11. So that Catiline made use of a very frivolous Pretence, in Justification of his Conspiracy, when he said, Deprived of the Fruits of my Labour and Industry, I was not raised to a Post equal to my Merit.... I saw Men of no Worth promoted to Honours, and myself repulsed upon groundless Surmises. Sallust, Bell. Catilin. Cap. XXXVI. Edit. Wass.

[6] Simple Proportion, or Arithmetical, is found, according to Aristotle, between three Quantities, the first of which exceeds, or is exceeded by the second, as much as the second surpasses, or is surpassed by the third; so that to reduce Things to a just Medium, in which Justice consists, we must take from or add to the first Quantity, as much as is added to or taken from the second. In this Place we are to add or take away what is agreeable or advantageous, and what is disagreeable or disadvantageous; which the Philosopher calls κέδος Gain, and ζημία Loss or Damage; for we take away part of both from him who has too much of either, in order to give it to him who has too little of them. Thus supposing a Thing worth only six Crowns, has been fraudulently sold for nine, the Seller has three Crowns too much, and the Buyer three too little: Take away three Crowns from the former, and give them to the latter, and you come to an Arithmetical Proportion between 9, 6, and 3; because 9 exceeds 6 as much as 6 does 3. See Ethic. Nicom. Lib. V. Cap. VII.

[7] This Geometrical Proportion subsists between four Quantities, the first of which contains or is contained in the second, as often as the third contains or is contained in the fourth; as when we say, Six is to three as twenty-four to twelve; or Three is to six as twelve to twenty-four.

[8] Cassiodorus calls it Habitudinis comparatio. Homer gives a pretty good Description of this Sort of Proportion, which commonly belongs to Attributive Justice, when he says,

σθλ μν ’σθλ δωκε, χέεια δ χείονι δόκεν.

He gave valuable Things to him who deserved most, and Things of less Value to him, who had less Merit. Grotius.
The Passage of Cassiodorus is taken from his Treatise De Dialectica, p.408. Edit. Paris, 1589, where he says, In proportione non est similitudo, sed quaedam habitudinis comparatio. As for Homer’s Verse, it is not well supported. It occurs in the fourteenth Book of the Iliad, where Neptune taking his Advantage of a profound Sleep, into which Jupiter had been thrown at Juno’s Entreaty, exhorts the Grecians to march against the Trojans; whereupon Diomedes, Ulysses, and Agamemnon ran from Rank to Rank, and made the Soldiers change their Arms, giving the best to the most valiant, and the worst to those that had less Courage. In Barnes’s Edition therefore we read δυνε he put on, instead of δωκε he gave.

[9] It has been justly remarked, that in Geometrical Proportion, by which Distributive Justice is regulated, according to Aristotle, the Merit of the Persons is compared with the Things themselves, so that the Quantity of what is given to one, is to the Quantity of what is given to another, as the Merit of one is to the Merit of the other. This evidently appears from Ethic. Nicom. Lib. V. Chap. VI, & VII. and particularly from a Passage where the Philosopher says, that in Affairs where Corrective or Permutative Justice, as opposed to Distributive, is concerned, (ν τος συναλλάγμασι) an Arithmetical Proportion is to be observed; so that the Question is not whether a Man of a good or bad Character cheats, is cheated, or commits Adultery; but that the Law considers no other Difference than that of the Damage sustained, looking on them as equal in other Respects, Lib. V. Cap. VII. p. 63. Edit. Paris. An Opposition, which plainly insinuates, that in the other sort of Justice, a Regard is paid to the Quality of the Persons, as well asto the Advantage or Disadvantage arising to either of the Parties. So that in a Contract of Society, which belongs to Aristotle’s Corrective or Permutative Justice, according to him, no Regard is tobe had to the Quality of the Person; and as Gronovius observes, if the Prince of Orange puts 1000 Crowns, for Example, into the India Company’s Stock, he receives no more Dividend than a private Person, who deposits the same Sum. Nor does our Author pretend he does; though his Commentator insinuates as much. All he means is, that in the Administration of Corrective or Permutative Justice, Men do not always observe such an Arithmetical Proportion, as Aristotle describes; for upon dividing the Profits among several Proprietors, who have engaged in a Partnership in unequal Shares, it is certain, that Geometrical Proportion must be observed, and that the other is not sufficient. It is true, this is not a Geometrical Proportion, by which the Merit of the Persons is compared with Things; and that it is enough that the Things themselves are compared together, that is, each Person’s Share with that of others, and with the Loss or Gain, of which each is to have his Part. It is also true, as Pufendorf observes, B. I. Chap. VII. § 9. the Shares of the Partners may be equal; in which Case, there will be a perfect Equality in the Division of the Profits. But as they may be, and very frequently are unequal, it may justly be affirmed, that the Use of Arithmetical Proportion is not sufficient in Contracts, which is all our Author contends for.

[10] Some reply, that the Case is not possible, but all that can be said with Certainty is, that it seldom happens. Others say, that Geometrical Proportion is observed even in that Case, because the Merit of that Person, who alone is capable of an Employment, is compared with the want of Merit in all the other Subjects. But then the Comparison is not made between Things of the same Kind, and consequently, Geometrical Proportion cannot take Place here. In reality, the whole Dispute is of very little Importance; and how faulty soever Aristotle’s Division may be, our Author had better have proposed his own, than have given himself the Trouble of reconciling it with the other, as he has rectified it; for they are still very different at the bottom, as will easily appear on a careful perusal of that great Philosopher’s Moral Treatises.

[11] I am inclined to think the Author here had in view a Passage of Aristotle, where he says, that Distributive Justice always follows Geometrical Proportion. For, continues the Philosopher, upon a Distribution of the Publick Money, it must be made in Proportion to what each has contributed. Ethic. Nicom. Lib. V. Cap. VII. p. 62. I suppose the Philosopher designed to speak of the following Case. Several private Persons have furnished the State with Money for the Demands of the Publick, and that in different Sums; the proper Officers are inclined to reimburse them, but the Sum destined for that End, is not sufficient for the Payment of all the Creditors; so each receives in Proportion to what he lent. But this very Example may serve to shew, how little Justness there is in Aristotle’s Ideas. For, properly speaking, there is no Comparison between the Degree of the Merit of the Persons, and the Quantity of the Things, but only between what is advanced, and what is restored. If it be said that each Person deserves more or less to be reimbursed, as he had lent more or less, it may be easily shewn, that this Circumstance is but a very ambiguous Proof of more or less Merit; for it may, and often will happen, that those, who have furnished the largest Sums, have not lent so much in Proportion, as Persons of smaller Fortunes, who perhaps have very much streightened themselves to assist the Publick, whilst the former have suffered little or no Inconvenience, by depriving themselves for some Time of a Sum, very inconsiderable in comparison of what remained in their Hands. Now can it be doubted, that on this Supposition, they, who have expressed most Zeal for the publick Good, and have suffered most by promoting it, deserve to receive in Proportion to a larger Share of the Sum, which is not sufficient to discharge the whole Debt, than they whose Debt is in itself the most considerable? I reason here on the Principle established by our Lord Jesus Christ, in regard to Alms, in the Judgment he pronounces of a poor Widow’s Charity, who gave only two small Pieces of Money for the Use of the Poor. Mark xii. 42, &c.

[12] Cyropaed. Lib. I. Cap. III. § 14. Edit. Oxon.

[13] See the same Writer, Lib. II. of the Cyropaedia. To the same Purpose God forbids the Judges of his People to countenance a poor Man in his Cause, or respect the Person of the Poor, in giving Judgment, Exod. xxiii. 3. Levit. xix. 15. In truth, as Philo the Jew observes, the Merits of the Cause are to be considered in themselves, and abstractedly from any Regard to the contending Parties. Lib. De Judice, p. 720. Edit. Paris. Grotius.
I do not find in the second Book of Xenophon’s Cyropaedia, to which our Author refers his Readers, any one Passage, that can relate to the Matter before us, but the following Reflection of Cyrus. One of that Prince’s Favourites proposed to him, that all his Soldiers should not equally share the Booty taken from the Enemy, but that it should be divided according to each Man’s respective Merit, and Behaviour in the Time of Action. Cyrus thought the Proposal reasonable, but was of Opinion, that the Consent of the whole Army should be first asked. “Where is the Necessity of such a Condescention? said Chrysanthes. “Is it not enough that you declare such is your Pleasure, and that the Distribution shall be made on that Foot? When you established Combats for the Prize, did not you at the same Time regulate each Person’s Reward?” To which Cyrus replied, The Case is not parallel; for I imagine the Soldiers will look on all the Plunder that shall be made, as their own Property; whereas they are persuaded that the general Command of the Army belongs to me, and perhaps is even my Birth-Right. So that I believe they think I commit no Injustice, to any one, when I dispose of the Charges in the Army. Cap. II. §10, 11. Edit. Oxon.

[1] In this Sense Horace says,

Jura inventa metu injusti fateare necesse est.

Lib. I. Sat. III. v. 3.

and

Jura neget sibi nata.

Art. Poet. v. 122.

On which Words the Scholiast says, Legum sit contemptor. Grotius.

[2] See Pufendorf, B. I. Chap. V. Where he explains the Nature and Foundation of moral Actions.

[3] The Author’s Expression in this Place seems to insinuate, that the Law obliges by its self, and merely as it is a Rule; whereas, all Laws derive their Power of obliging from a Superior, who makes them; that is, from some Intelligent Being, who has a Right of imposing an indispensible Necessity of submitting to his Direction, on those whose Liberty he restrains. To which may be added, that the Author reduces the whole Effect of the Law to the Obligation; whereas Permission ought to be joined to it, which he without Reason excludes.

[4] See Pufendorf, B. I. Chap. VI. § 1.

[5] I cannot be of our Author’s Opinion in this Point. Permission is as real an Effect of the Law, taken in its utmost Extent, as the strongest and most indispensible Obligation. The Superior, who gives Being to the Law, has a Right of positively directing either all the Actions of those who depend on him, or at least, all those of a certain kind: In regard of all those Actions, he has a Power of imposing a Necessity of acting or not acting in a certain manner. But no Superior exercises his Authority so extensively; there is always a considerable Number of Things subject to his Direction, in which he leaves every one the Liberty of doing as he pleases. This is not a mere Inaction, or Negation of Action, as our Author pretends, but a real positive Act, though commonly tacit, by which the Superior or Legislator makes an Abatement of his Right. So that, as the Actions commanded or prohibited, are regulated positively by the Law, so far as it imposes an indispensible Necessity of doing the former, and forbearing the latter, the Actions permitted, are likewise positively regulated by the Law in their own Way, and according to their own Nature, so far as the Law either originally gives a Power of doing or not doing them at Pleasure, or confirms and leaves Men in Possession of a Liberty, which it might have taken away either entirely, or in Part. There is no manner of Necessity of an express Permission, which seldom takes place in Divine or Human Laws: The Silence of the Legislator sufficiently infers a positive Permission of whatever is neither enjoined nor prohibited. Thus when God, who alone can regulate all the Actions of Men, of what Nature soever they be, forbad the Jews the Use of certain Animals for Food, as he might, if he had pleased, have extended the Prohibition to several other Kinds, by his only forbidding some Particulars, he actually and positively allowed them the Liberty of eating or not eating all others. As to human Laws, either they turn on Things already commanded or prohibited in some manner by Divine Law, natural or revealed; and in that Case, they give as much as in them lies, a Permission of doing several other Things of that Kind, where they are silent; which is a necessary Consequence of Impunity: Or they relate to Things otherwise indifferent in themselves; and then they of course permit whatever they do not forbid; there being an Infinity of Actions of such a Nature, that a Man invested with Authority may lay a Restraint on the Liberty of others, which the Law of Nature allows only so far as a lawful Superior does not think proper to bound it. In one Word, whoever fixes certain Limits, and declares no one shall be allowed to exceed them, does by that very Action express how far he grants Men Liberty to go, if they please. This Way of Reasoning is the more just, because, as our Author owns, the Permission which a Law gives to any one, lays an Obligation on others not to form any Obstacle to his acting, when he is disposed to do what the Law permits. Now this Obligation arises, and ought necessarily to arise from a Right inherent in him, to whom the Law gives a Liberty of acting as he pleases; for in all Obligations in which we stand engaged to others, there is some correspondent Right; and we have not a Right to require a Thing, because another is obliged to do it, but on the contrary, he is obliged to do it, because we have a Right to require it. Whence then arises this Right? It can certainly arise only from the Permission granted by the Law, a Permission, by vertue of which we are also empowered to resist those, who disturb us in the Enjoyment of this Right, and employ either the common Means of Justice, when we are in a Condition of having Recourse to the Protection of a proper Judge, or Force, if we have no other Way left of righting ourselves. In short, every one knows, that the Laws grant an express Permission, either to all such as depend on the Legislator, or only to some in Particular. From all which it appears, in my Opinion, that the Author had no Reason for excluding Permission from the general Idea of the Law. To which may be added what I have said on this Subject against Pufendorf, who is of the same Opinion with Grotius, B. I. Chap. VI. § 15. Note 2. By way of Supplement for this Omission, and some others, I am of Opinion that Law should be defined as I have already defined it, in a Note on the Abridgment of The Duties of a Man and a Citizen. B. I. Chap. II. § 2. of the last Editions: The Will of a Superior sufficiently notified in some manner or other, by which Will he directs either all the Actions in general of those who depend on him, or at least all those of a certain Kind, so that, in Regard to such Actions, he either imposes on them a Necessity of doing or not doing certain Things, or leaves them at Liberty to act or not act as they shall judge proper.

[6] We have an Example of this in a Law made by Zaleucus, inflicting a Penalty on those, who should drink Wine against the Physician’s Orders. Grotius.
This severe Law made the Offence capital, if we may believe Elian, Var. Hist. Lib. II. Cap. XXXVII. See Pufendorf, B. I. Chap. VI. § 4 in the Text and Notes. To which we may add what Elian says of the Lacedemonians and Romans, Lib. III. Cap. XXXIV. with the Note of the late Mr. Perizonius.

[7] Thus we say: It is just to acknowledge Favours, to have Compassion for the Poor, to be liberal to those who want our Assistance, to take a prudent Care of our Health and Fortune, &c.

[8] In his Ethic. Nicom. Lib. V. Cap. X. where he makes a Distinction between Δίκαιον Φυσικν, and Δίκαιον νομικν, as making part of what he calls Δίκαιον πολιτικν Civil Law. So that his Division is not exactly the same with that of our Author. See my Preface to Pufendorf, § 24. p. 97, 98. of the second Edition.

[9] That is, for a Constitution absolutely depending on the Will of the Legislator.

[10] Τ ν τάξει. The Philosopher makes use of this Expression, when speaking of Injustice. δικν μν γά στι τ ύσει, τάξει. Ethic. Nicom. Lib. V. Cap. X. p. 68. Vol. II. Edit. Paris.

[11] Thus Maimonides, in his Guide to the Doubtful, Lib. III. Cap. XXVI. Grotius. See Selden, who also adopts this Rabbinical Remark, in his Treatise, De Jure Nat. & Gent. secundum Disciplinam Hebraeorum, Lib. I. Cap. X. p. 119, 120. But our Author here gives us to understand, that this Distinction is not always observed, as he expressly acknowledges in his Commentary on St. Luke i. 6. See Mr. Le Clerc, on Genesis xxvi. 5. and in his Additions to Dr. Hammond’s Notes on Rom. viii. 4.

[1] Philo the Jew, in his Treatise, where he undertakes to prove that every good Man is free, speaks thus, Right Reason is an unerring Law, not corruptible or lifeless, written by this or that mortal Man, on Papers or inanimate Pillars, but incorruptible, and engraved by an immortal Nature on an immortal Mind, p. 871. Edit. Paris. Will you enquire where the Law of GOD is? says Tertullian, when you have a common Law exposed to every one’s View, and written on the Tables of Nature? De Coronâ Militis, Cap. VI. The Emperor Marcus Antoninus declares, The End to be proposed by all rational Creatures, is to follow the Reason and Laws of the most antient Commonwealth, Lib. II. § 16. See a Fragment of Cicero’s Treatise De Republicâ, Lib. III. quoted by Lactantius, Lib. VI. Cap. VIII. St. Chrysostom has several fine Thoughts on this Subject, in his twelfth and thirteenth Homilies On the Statues. What Thomas Aquinas says, Secunda Secundae, I.VII. 2. and Scotus, III. Dist. 37. is not unworthy our Notice. Grotius.

[2] Our Annotator adds the Words ac Sociali, & Sociable in the Text of his Latin Edition, because his Author expresses himself in the same Manner, § 12. Num. 1. and in the following Chapter, § 1. Num. 3. He thinks it probable, that the Transcriber or Printer omitted those two Words; and that the Author overlooked the Omission, as he has done in several other Places.

[3] Actus debiti, aut illiciti per se. The Author here supposes we should be under an Obligation of doing or not doing certain Things, even tho’ we were not answerable to any one for our Conduct. We are not to be surprized that his Notions on that Subject are not entirely just, since we see at this Day not only the Generality of Philosophers and Scholastick Divines, but also some Authors, otherwise very judicious, and far from being Slaves to the Schools, strenuously maintain, that the Rules of the Law of Nature and Morality do in themselves impose an indispensible Necessity of conforming to them, independently of the Will of GOD. Some however, reason so as to make it seem a mere Dispute about Words. I shall endeavour to put the Question in a clear Light in a few Words, and shew the Foundation of the Negative, which I take against the Author. This Note may be joined to what I have said on the same Subject in my Preface to Pufendorf, § 6. p. 36. Second Edition. The Question here is not whether we can discover the Ideas and Relations, from which all the Rules of the Law of Nature and Morality are deduced, abstractedly from the Will of an intelligent Being. It must be acknowledged with the Patrons of the Opinion which I oppose, that these Rules are really founded on the Nature of Things; that they are agreeable to the Order conceived necessary for the Beauty of the Universe; that there is a certain Proportion or Disproportion, a certain Fitness or Unfitness between most Actions and their Objects, which give a Beauty to some, and a Deformity to others. But it does not follow from this Concession, that we are, properly speaking, obliged to do or not to do such a Thing. The Fitness or Unfitness, which may be termed the natural Morality of Actions, is indeed a Reason for acting, or not acting; but then it is not such a Reason as imposes an indispensible Necessity, which is implied in the Idea of an Obligation. This Necessity can come only from a superior, that is, from some intelligent Being existing without us, who has a Power of restraining our Liberty, and prescribing Rules for our Conduct. If there were any Obligation independently of the Will of a Superior, it must be laid on us either by the Nature of the Things themselves, or by our own Reason. Now the Nature of Things cannot impose any Obligation properly so called. The Relation of Fitness or Unfitness between our Ideas, can of itself only oblige us to acknowledge such a Relation; something more is necessary for obliging us to make our Actions conformable to it. Nor can Reason of itself lay us under an indispensible Necessity of following those Ideas of Fitness or Unfitness, which it places to our View, as grounded on the Nature of Things. For, first, the Passions oppose these abstracted and speculative Ideas with sensible and affecting Ideas, they shew us in several Actions contrary to the Maxims of Reason, a Relation of Pleasure, Content, and Satisfaction, which attend them, as soon as we resolve to perform them. If our Understanding diverts us from such Actions, the Inclination of our Heart carries us toward them with much more Force. Why then should we comply with the former, preferably to the latter, if there is no exterior Principle that obliges us so to do? On this Supposition, are not the Inclinations of our Heart as natural as the Ideas of our Mind? Do they not arise from a certain Disposition in our Nature? You will say, Reason evidently shews us that we shall act more conformably to our Interest, by observing the Rules which she prescribes, than in being guided by our Passions. But the Passions will dispute this Advantage, and even pretend it lies on their Side, because the Satisfaction which they offer is present and certain; whereas the Interest to which Reason would engage our Attention, is future and distant, and perhaps therefore to be looked on as uncertain. Even tho’ we were convinced that, all Things well considered, it would be advantageous to us to listen to the Dictates of Reason, is not every one at full Liberty to renounce his Interest, while no other Person is concerned in his acting conformably to it, or invested with a Right of requiring he should consult it as much as is in his Power? How much so ever a Man acts in contradiction to his real Interest, he will, on this Supposition, be only imprudent: He will be guilty of no Violation of any Duty or Obligation, properly so called. But secondly, what ought to be particularly observed, and which alone is sufficient for proving the Thesis here advanced, is that our Reason, considered as independent on the Being who endowed us with it, is at the Bottom nothing but Ourselves. Now no Man can impose on himself an indispensible Necessity of acting or not acting in such a particular Manner. The very Notion of Necessity implies, that it cannot cease at the Pleasure of the Person subject to it; otherwise it would be ineffectual, and reduced to Nothing. If then the Person obliged, and the Person who lays the Obligation be one and the same, he may disengage himself from it, when, and as often as he pleases; or rather there will be no real Obligation; as, when a Debtor succeeds to the Estate and Rights of his Creditor, the Debt ceases. In a Word, as Seneca very well observes, properly speaking, No Man owes any thing to himself.... The Word Owe takes Place only between two. De Benef. Lib. V. Cap. VIII.
From all which I conclude, that how conformable soever the Maxims of Reason be to the Nature of Things, and the Constitution of our Being, they are by no Means obligatory, till this same Reason has discovered the Author of the Existence and Nature of Things, whose Will gives those Maxims the Force of a Law, and imposes an indispensible Necessity on us of conforming to them, by Vertue of his Right to restrain our Liberty, as he judges proper, and prescribe what Bounds he pleases to the Faculties we received from him. It is true, GOD can command nothing contrary to the Ideas of Fitness and Unfitness, which Reason shews us in certain Actions, but still the Obligation of regulating our Conduct by those Ideas proceeds only from his Will. The Question is not, Whether that Will be arbitrary or not? It is still that alone which, properly speaking, imposes the Necessity. If, supposing an Impossibility, we could reasonably persuade ourselves that the Divinity is such as he is represented by the Epicureans, a Being who does not interest himself in the Actions of Men, requires nothing at their Hands, has no Concern for their living well or ill; whatever Ideas we might entertain of Order, Fitness, and natural Justice, the Consideration of such a Divinity would not be sufficient for imposing an indispensible Necessity of taking those Ideas for our Rule, even tho’ we believed he himself acted conformably to them, as far as the Perfection of his Nature requires; for Example is not in itself a solid Foundation of Obligation. In short, that the Will of GOD is the Source of all Duties appears from this Consideration, that when they who are in Possession of a Religion, practise the Rules of Virtue, and the Maxims of the Law of Nature, they ought so to do, not principally and precisely because they acknowledge such Rules conformable to the natural and invariable Ideas of Order, Fitness, and Justice; but because GOD, their Sovereign Master, wills that they should follow them in their Conduct. And, in Reality, it would otherwise be unnecessary for GOD to give any Orders on that Head, because they would be already obliged to act in that Manner: The Will and Authority of GOD would, on this Supposition, be no more than a Sort of Accessory, which, at most, would only make the Obligation stronger. I have treated this Matter more at large in my Reflections on The Judgment of an anonymous Author; or the late Mr. Leibnitz, printed in 1718, at the End of the fourth Edition of my Translation of the Abridgment of Pufendorf’s Book Of the Duties of a Man and a Citizen.

[4] He speaks here of such Things as are neither commanded nor forbidden by the Law of Nature, in regard to which we are left to our Liberty to act as we judge proper, unless a lawful Superior makes some positive Law in that Point; as it is in his Power; which is agreeable to the Law of Nature only in the Manner here specified, not being immutable, as our Author observes elsewhere, B. I. C. II. § 5. n. 1. But it is evident from what I have said, Note 5. on the preceding Paragraph, that there is a Natural Law of bare Permission, as well as one which is obligatory; and thus the Things which the Author means, may very well be considered as belonging to Natural Law, in the former Acceptation of the Term.

[5] Our Author, in another Part of this Work, mentions Concubinage, Divorce, Polygamy, B. I. C. II. § 6. n. 2. the Action of a Person, who discovers to another, what he is not by the Law of Contract obliged to discover: (B. II. C. XII. § 9. n. 2.) The Care of declaring War in certain Cases, where it may be omitted without any Violation of Natural Law: (B. III. C. III. § 6 n. 6.) The Vow of Celibacy, Second Marriages, and the like, (B. III. C. IV. § 2. n. I.) as so many Examples of Things belonging to this Class. What we shall say on those Places, and on B. I. C. II. § 1. n. 3. will help to explain the Principle here laid down by our Author, and shew wherein he has misapplied or extended it too far. See also Pufendorf, B. II. C. III. § 22.

[6] See Pufendorf, B. II. C. III. § 15. Note 5. and § 22, 24.

[7] Theft is a fraudulent taking of a Thing, for the Sake of making an Advantage either of the Thing itself, or of the Use or Possession of it: All which is forbidden by the Law of Nature. Digest. B. XLVII. Fol. 2. De Furtis, Leg. I.§3.

[8] The Words of the Emperor Julian on that Subject are, Besides that, by which we are all convinced, without Instruction, of the Existence of something Divine; there is a second Law, sacred and divine by Nature, which orders us entirely to abstain from another Man’s Property, and allows us not to make any Attempt on it, either by Word or Action, or even in our secret Thoughts, &c. Orat. VII. p. 209. Edit. Spanheim. The Philosopher Chrysippus, as represented by Cicero, said, There is no Injustice in seeking ones own Advantage; but it is contrary to Equity to take away from another. De Offic. Lib. III. Cap. X. Grotius.

[9] Theft and Adultery are in their own Nature Evil and Infamous. Digest. Lib. L. Tit. XVI. De Verborum significatione, Leg. XLII.

[10] For the Deity abhors violence. It is his Will that all Men should remain in quiet Possession of their own Goods; but no Rapine is allowed. Riches unjustly acquired are to be renounced, for the Air and Earth are common to all Men, where, when they increase their Possessions, they are not to detain or take away what belongs to others. Helen. V. 909, &c.

[11] Compare this with what Pufendorf says, B. II. C. III. § 5.

[12] See Mr. Le Clerc’s Ontology, C. XIV.

[13] The Definition of moral Good and Evil, of Virtue and Vice, being established on the necessary Congruity or Incongruity, which we perceive between certain Ideas, founded on the very Nature of Things; to say the Good becomes Evil, and Evil Good, as long as the Things remain the same, implies a Contradiction. If therefore God should command a Thing in which we find a necessary Incongruity with the Nature of Things; and on the contrary, prohibit a Thing in which we discover a necessary Congruity with the Nature of Things; he would act in Contradiction to himself, because he is the Author of that Nature: Thus he would be wise and not wise at the same Time; he would have all Perfections, and yet want one of the greatest; which is such a manifest Contradiction as can never be the Object of the Divine Omnipotence. If it be said, that God can change the Nature of Things, the Proposition is unintelligible, and when closely examined, implies no less Contradiction. For either the Things would not be the same, tho’ called by the same Names; as Man, for Example, would be no longer a rational and sociable Creature; or Things remaining still the same, they would no longer be endowed with the same Properties, and the same essential Relations, i.e. they would and would not be the same; for the Essence of a Thing, and the Thing itself, differ only in Name.

[14] Ethic. Nicom. B. II. C. VI. The Application of this Passage is not entirely just. Aristotle is not here speaking of the Mutability or Immutability of Moral Evil. He means no more than that some Passions and Actions are of such a Nature, that they can be innocent in no Case, nor in what Manner soever they are admitted. Of this Sort are a malicious Joy at our Neighbour’s Misfortunes, Impudence, Envy, Adultery, Theft, and Murder; whereas some other Passions and Actions are Good or Evil, as a just Medium is observed, or as we depart from it, and give into either Extreme: Such are Fear, Confidence, Desire, Aversion, Anger, Compassion, Joy, Sorrow, the Actions of giving or receiving, of speaking or being silent, &c. But, whether the moral Evil, always inherent in the former Sort of Actions and Passions, and sometimes in the latter, is absolutely inseparable from them, even by the Will of God, is another Question, on which the Philosopher says nothing either directly or indirectly, which leaves us Room to suppose he had it in his Thoughts.

[15] This Example is employed, B. I. C. VII. by way of Comparison, in relation to a very different Subject.

[16] See Preliminary Discourse, § 49. n. 3. and B. I. C. II. § 2. num. 1. B. II. C. VII. §2. n. 3. and B. III. C. XI. § 9. num. 2.

[17] This is treated of in B. II. C. II. § 2.

[18] See B. I. C. III. § 1, 2. and B. II. C. XX. § 8.

[1] See Pufendorf, B. II. C. III. § 2, 3.

[2] Brutes have not a Power of forming abstracted or general Ideas, as Mr. Locke has shewn in his Essay on the Human Understanding, B. II. C. XI. § 10, 11. See also Cicero, De Officiis, B. I. C. IV. and Seneca, Ep. 124. Or if it be imagined, that by allowing Brutes Knowledge, it will be hardly possible to deny them some universal Ideas; it must be granted, at least, that they are not very extensive, and, according to all Appearance, are raised only by the Impressions of some particular Object which is present.

[3] Oper. & Dier. V. 276, &c. Edit. Cleric.

[4] Juvenal makes the same Observation, Sat. XV. v. 142, &c. “It is that which distinguishes us from Brutes. And it is also upon that Account that we only, of all Animals, have obtained a wonderful Capacity of apprehending divine Things, of inventing and exercising divers Arts. This Understanding we derive from Heaven, which the other Animals, whose Bodies are formed to look towards the Earth, are intirely deprived of. The common Creator of the Universe has given to them Souls endowed only with Sense; but to us he has moreover given Reason, that a mutual Affection might encline us to ask and give mutual Assistance, to unite together, and to form Notions, &c. ”St. Chrysostom says, We ought not to trans gress the Rules of Justice, even in regard to inanimate Beings, and such as are void of Sense. On VII. C. of Epist. to the Romans. Grotius.
This Thought of St. Chrysostom seems, on the contrary, to suppose some Sort of Law common to Men and Brutes.

[5] Nor does our Nature differ in any Thing more from that of Beasts, to which we attribute Strength, as a Horse and a Lion, but never Justice, Equity, or Beneficence; for they have neither the Use of Reason nor Speech. De Off. B. I. C. XVI. Our Author might have added a Passage from Aristotle, where that Philosopher observes, that We never say Beasts are temperate or intemperate, but by a Metaphor, tho’ one Species of Animals differs widely from another, in the natural Desire of Generation, and Greediness in Eating. Ethic. Nicom. Lib. VII. Cap. VII. p. 92.

[6] Cap. XVII. Num. 30, 31. Edit. Cellar.

[7] (Polyb.) Lib. VI. Cap. IV. In regard to what the Philosopher says of Offences committed against Parents, we have an Example of that Kind in Ham, and the Punishment of his Crime, Gen. ix. 22, &c. St. Chrysostom observes, that We are naturally inclined to join in our Indignation with those who have been injured; for, says he, we immediately become Enemies to the Offenders, tho’ we have no Share in the Injury. Hom. XIII. De Statuis. The Scholiast on Horace, Sat. III. Lib. I. v. 97. remarks, that Our Sentiments of Indignation upon hearing of a Murther, are different from those that arise in our Soul when we are inform’d of a Robbery. Grotius.

[8] Pliny, in his Natural History, Lib. VIII. Cap. V. speaks of a Sort of Sense of Justice in Elephants, which he terms divinatio quaedam Justitiae. The same Writer, Lib. X. Cap. LXXIV. tells us, on the Credit of another Author, that in Egypt, an Asp was known to kill one of its own Young, for having killed the Man’s Son who entertained and fed him. Grotius.

[9] Seneca says, that wild Beasts are not, properly speaking, subject to Anger, but have a Sort of blind Impetuosity in its stead. Brutes, says he, are void of human Passions, but have certain Impulses resembling those Motions. De Ira. Lib. I. Cap. III. Origen also observes, that Beasts are not susceptible of Vice, properly so called, but that we find in them something that resembles Vice. Contra Celsum. The Peripaticks said, The Lion seems to be angry. Porphyr, De non esu Animalium, Lib. III. p. 309. Edit. Lugd. 1620. Grotius.

[1] This Way of proving the Existence of the Law of Nature is of little Use, because only the most general Maxims of that Law have been received by most Nations. Some Practices even contrary to the most evident of them, were long considered as indifferent in the most civilized Countries, as appears from the horrible Custom of exposing Children. See Pufendorf, B. II. Chap. III. § 7, 8. and what I have said in my Preface to that Author, § 4.

[2] Opp. & Dier. vers. penult. But the Passage is not well applied in this Place; for the Poet means only that we ought to endeavour at securing a good Reputation in the World, because false Reports always make some Impression, and prejudice the Person to whose Disadvantage they are spread. υ πάμπαν πόλλυται, Are not entirely without Effect.

[3] This is taken from Sextus Emtricus, sic: Empiricus, Adv. Mathem. Lib. VII. § 134. p. 399. Edit. Fabric.

[4] Aristotle maintains, that What all Men conceive in a certain Manner, is really such as it appears; and that, Whoever attempts to discredit such a Belief, will advance nothing much more worthy of Credit. Ethic. Nicom. Lib. X. Cap. II. p. 130. Edit. Paris. Seneca, undertaking to prove that no Duty is more evident than that of Gratitude, gives the following Reason for it: How different so ever the Opinions of Men may be on other Subjects, they will all unite in declaring that a proper Return is to be made to those who have deserved well of us. Epist. LXXXI. Quintilian says, I will therefore call the Consent of the Learned, the Standard of Language, and the Consent of good Men, the Rule of Life. Lib. I. Cap. VI. To the same Purpose, Josephus, the Jewish Historian, There is no Nation in which the same Customs are generally established: One City frequently differs from another in this Point, but Justice is equally proper for all Men, being extremely useful both to the Greeks and Barbarians. As our Laws have a strict Regard to that Virtue, they render us, if religiously observed, benevolent and friendly to all Men. This is what we are to require from Laws: Nor are others to profess an Aversion to them, on the Account of the Difference between their Institutions and ours, but rather to consider whether our Laws have a Tendency to promote Probity and Virtue; for this is the common Concern of all Mankind, and is of itself sufficient for maintaining human Society. Antiq. Judaic. Lib. XVI. Cap. X. Tertullian says, that Whatever is equally received by great Numbers of People, is not an Error, but a real Tradition. De praescript. adv. Haeret. Cap. XXVIII. Grotius.
None of these Quotations, except the two first, are to our Author’s Purpose: That of Quintilian seems rather to insinuate the contrary of what he would prove; for it is well known, that good Men were never the Majority; and that great Master of Rhethoric had a little before declared, that Custom, if it received its Name from the Practice of the Majority, will give most pernicious Precepts, not only for forming a Stile, but also for regulating our Lives. The Passage of Josephus comes to no more than this: That the Practice of Justice is equally useful to all Men; but there is nothing in it that insinuates that all Men entertain the same Ideas of that Virtue.

[5] Sextus Empiric. Adv. Mathem. Lib. VII. § 131, 133.

[6] I know not whence this is taken; for I do not find it in any of those Books where it might be supposed that Philosopher has said any Thing of this Nature.

[7] Tusculan Quaest. Lib. I. Cap. XIII.

[8] Epist. CXVII.

[9] Instit. Orator. Lib. V. Cap. X. p. 399. Edit. Burman. He instances in the Belief of a Divinity, and the Obligation under which Children lie of loving and obeying their Parents.

[10] Of Abstinence, Lib. IV. p. 428. Edit. Lugd. 1620.

[11] Justin Martyr makes this Exception, Except such as being possessed with impure Spirits, and corrupted by a bad Education, evil Customs, and unjust Laws, have lost their natural Ideas. Colloq. cum Tryphone. Philo the Jew observes, that It is surprizing any Man should be so blind, as not to perceive certain Properties of Things, which are as clear as the Sun. In his Treatise proving all good Men to be free, p. 871. Edit. Paris. St. Chrysostom cautions us against forming a Judgment of Things from the Opinion of such as have a corrupt Mind. In his Homily on the Divinity of Jesus Christ. Grotius.

[12] Ethic. Nicom. Lib. V. Cap. X. Num. 2. Edit. Heins.

[13] In the Life of Pompey, Vol. I. p. 633. Edit. Wech.

[14] Topic. Lib. V. Cap. II. p. 228. Vol. I. Edit. Paris.

[15] St. Chrysostom says the same in his eleventh Homily On the Statues. Philo the Jew is larger on this Point. Nature, says he, when it produced the tamest of all living Creatures, made him sociable, and disposed to Concord. She also gave him the Use of Speech, for promoting an Harmony and a Conformity of Manners. On the Decalogue, p. 763. Edit. Paris. And in another Place, Man is the most tractable of Animals, being by Nature endowed with the Gift of Speech, by which the most savage Passions are charmed into Tameness. Of the Immortality of the World, p. 945. Grotius.

[16] Polit. Lib. I. Cap. V.

[1] This is usually called Positive Law. Its Objects are Things in themselves indifferent, or such as are not founded on the Constitution of our Nature, and consequently admit of different Regulations, as Time, Place, and other Circumstances require; all which depend on the Will of a Superior, which is the only Foundation of this Kind of Law, which is therefore called Arbitrary. See Pufendorf, B. I. Chap. VI. § 18.

[1] The Author follows Aristotle in the Addition of this Epithet. That Philosopher considered Civil Society, as a perfect Society, υτάκη, containing all that is necessary for living commodiously and happily. Politic. Lib. I. Cap. I. See also Lib. III. Cap. VI. & Lib. VII. Cap. IV. The Definition of a State may be seen in Pufendorf, B. VII. Chap. II. § 13; and the Note on that Place.

[2] For there were Parents and Children, Masters and Servants, &c. before there were Princes and Subjects. The Authority of a Father over his Child, that of a Master over his Servant, &c. is by no Means founded on the Will of the Civil Power, and the Obligations incumbent on Men as Members of a State; but has a different Origin, as shall be shewn in the proper Place. The Sovereign in this Case can only lay a Restraint on that Authority, as far as the Publick Good requires.

[3] This Positive Law of Nations, distinct from the Law of Nature, is a mere Chimera. See Pufendorf B. II. Chap. III. § 23. with the Notes. I grant there are some Laws common to all Nations, or certain Things which ought to be observed by all Nations, in Regard to one another; and this may very well be termed the Law of Nations. But, besides that the Obligation to obey those Laws, does not arise from the Consent of Nations, which cannot take Place here; the Principles and Rules of such a Law, are in Reality the same with those of the Law of Nature, properly so called: The whole Difference consists in the Application which may be made in another manner, on the Account of the different Ways taken by Communities for determining Disputes. This is evident from the Example of Reprisals, which are founded on that general Maxim of the Law of Nature and Nations, that Damages ought to be repaired; for a Man in the State of Nature, cannot demand Satisfaction, for any Injury received from one who lives out of all Civil Society, of any of his Relations or Friends, who are really not concerned in the Affair. As to Customs received by the Generality of Nations, and concerning which the Law of Nature has given no Directions, if we are obliged to submit to them, it is not because they are obligatory in themselves, but because as soon as we know a Thing is generally practised, we are, and may be supposed to conform to such a Custom, while we give no Proof of the contrary. Thus the whole Obligation arises from this tacit and private Agreement, without which the Customs in Question have no Force.

[4] See Vasquez, II. Controv. Illustr. LIV. 4. Grotius.

[5] B. III. Chap. VII, IX.

[6] Orat. LXXVI. De Consuetudine.

[1] We have the following Passage on this subject in one of our Author’s Epistles. “Salmasius, in his Treatise De Usuris, frequently disputes about Words. Thus (p. 589, 685.) he spends much of his Time in opposing the Epithet Voluntary, which I have employed as a proper Term for characterizing and distinguishing non-natural divine Law. But he did not observe that Cicero calls a bad Action Facinus voluntarium, and opposes voluntarius to necessarius. God was at full Liberty not to create Man. The Moment he is determined to create Man, that is, a Nature endowed with Reason, and formed for a Society of an excellent Kind, he necessarily approves of such Actions as are suitable to that Nature, and as necessarily disapproves of those which are contrary to it. But there are several other Things which he commands or prohibits, because he thought fit so to do, and not because he could not act otherwise. I do not see what more proper Word could be found for expressing this Sort of Law, which is not invariably attached to the Nature of Man, and for establishing which the free Determination of the Divine Will intervenes.” Epist. Part II. Ep. 429.

[2] I have produced and explained the Passage of Plutarch, to which our Author here alludes, in my Remarks on Pufendorf, B. II. Chap. III. § 4. n. 1.

[3] I do not understand what positive Laws the Author means, which God delivered at the beginning of the World, and which are still obligatory, as soon as they are known. It is probable he understands by those Terms the several Sorts of Incest in the Collateral Line relating to the fourth of the six Commandments, which he, with the Rabbies, supposes were given to Adam and Noah, though they are only distinguished by the Name of the latter, as is also the Seventh, concerning Abstinence from Blood, which we find prescribed to Noah, Gen. ix. 4. See Num. 4. of the following Paragraph, and Chap. II. of this Book, § 5. Num. 5. B. II. Chap. V. § 13. num. 2, 5, 6; as also Selden, De Jure Nat. & Gent. juxta disciplinam Hebraeorum, Lib. I. Cap. X. But all this is grounded only on a very uncertain Tradition, which can never have the Force of a general Law, duly promulgated; as will appear still more evidently from what I shall say on the Places here referred to. We shall shew in Note 1. on B. II. Chap. V. § 13 that the Consequence drawn from Levit. XVIII. 24. &c. is not well founded. Others, (as Mr. Hochsteter, Professor at Tubingen, in his Collegium Pufendorfianum, Exercit. III. § 19.) with more Reason refer this to the Prohibition given to our first Parents in regard to the Tree of Knowledge of Good and Evil. Gen. ii. 16, 17 iii. 2, 3. But, tho’ that positive Law would have been equally obligatory to their Posterity, had they remained in Paradise, yet as the Matter of the Prohibition was but of short Duration, and the Law could never take Place afterwards, it is to no Purpose to make it an Example of an universal positive Law. The same Author, and several others, after Mr. Thomasius, who first reduced this Sort of Laws to a System, but afterwards ruined his own Edifice; those Authors, I say, place the Prohibition of Polygamy and Divorces among the universal positive Laws given to Adam; and pretend to find it in Gen. ii. 24. as also the Observation of the Sabbath, ibid. v. 3. the Authority of a Husband over his Wife, iii. 16. the Use of Sacrifices, iv. 3. But, first, tho’ Moses says, A Man shall leave his Father and his Mother, and shall cleave unto his Wife; and they shall be one Flesh. Nothing can hence be concluded either for or against Polygamy or Divorce. The Expression, Shall be one Flesh, in itself means no more than that there shall be the strictest Union between a Man and his Wife; but it does not imply that a like Tie cannot at the same Time subsist between a Husband and two or more Wives. And all that can be inferred from the same Text, in regard to the Dissolution of Marriage, is, that it ought not to be admitted rashly, and without some good Reason. The Word Flesh, according to the Hebrew Idiom, signifies all Ties, both of Affinity and Consanguinity, as Mr. Le Clerc has observed. Thus Laban says to Jacob, Thou art my Bone and my Flesh, Gen. xxix. 14. that is, I own you for one of my Relations. As therefore all the Relations of a Man are his Flesh; so, in the same Way of Speaking, a Man may be said to be one Flesh with several Wives. Secondly, Inregard to the Sabbath, it is owned by the most judicious Divines, that when Moses, after the History of the Creation, says, GOD blessed the Seventh Day, and sanctified it, he speaks by Anticipation, and only touches by the by on the Reason why GOD afterwards instituted the Feast of the Sabbath, so considerable among the Jews. Thirdly, When GOD says to Eve, Thy Desire shall be to thy Husband, and he shall rule over thee, the Penalty consists rather in the Necessity laid on Wives, in consequence of Sin, of obeying ill Husbands, than in any Right conferred on Husbands to command them in certain Cases, and to a certain Extent, that Right being grounded on the Law of Nature, and not barely on Divine Positive Law; as we shall see in the proper Place. Fourthly, The fourth Chapter of Genesis gives us only one Example of Sacrifices offered by two Sons of Adam; but there is not the least Insinuation, that GOD had commanded them to render him that Kind of exterior Worship. It is not probable indeed, that Men should so soon have thought of it, without some Direction, as Mr. Le Clerc very well observes; but it does not thence follow, that GOD had then prescribed that Practice, in the Form of an universal and perpetual Law for all Mankind.

[4] Of this Sort are usually said to be the Prohibition of eating Blood, Gen. ix. 4. and the Punishment of Murther, v. 6. But, First, The Prohibition of eating the Flesh of Animals, with their Blood or Life, was a Sort of symbolical Law, for diverting Men from Cruelty towards one another, at a Time when a Tenderness in that Particular was of the greatest Importance for the Multiplication of Mankind. See Mr. Le Clerc’s Comment on the Place. Besides, we have not the least Insinuation, that any but the moral Part of this Law was to be obligatory at all Times, and in all Places; and such as pretend it not allowable, even under the Gospel Dispensation, to eat the Blood of any Animal, have been sufficiently confuted. Secondly, When GOD says, Whoso sheddeth Man’s Blood, by Man shall his Blood be shed. This is not a Law, properly so called, but a bare Declaration of the just Punishment which Murtherers are to fear, either from Man or from GOD, by an Effect of the Divine Providence and Vengeance. See the following Chapter, § 5. note 2. This is evident from the preceding Words, where God says, At the Hand of every Beast will I require it: (the Life of Man) At the Hand of every Man’s Brother will I require the Life of Man. To which he adds, by way of Confirmation, Whoso sheddeth, &c. For in the Image of GOD made he Man. From this Passage mis understood, some Lawyers, as the late Mr. Cocceius, Professor of Law at Francfort on the Oder, (Dissert. De Sacrosancto Talionis Jure § 29, &c.) infer that even at this Day no human Power can pardon a Murtherer. See a Dissertation of Mr. Thomasius, printed at Hall, in 1707, and entitled, De Jure aggratiandi Principis Evangelici in causis Homicidii. in which he opposes this Error. See also the following Chapter, § 5. num. 3.

[5] See the following Chapter, § 6 num. 2.

[1] Some Commentators, as well Lawyers or Criticks as Divines, inveigh strongly against this Assertion of our Author; but they only copy the common Places of Scholastick Divinity. They need not have given themselves so much Trouble, had they but considered, that the Question concerning the Salvation of the Pagans ought not to be brought into this Dispute, as being nothing to the Purpose. For whether the Heathens could or could not be saved without some Knowledge of JESUS CHRIST, either distinct or typical, it is still certain, that the Law of Moses, as such, laid no Obligation on the Pagans. This Law was undoubtedly directed only to the Israelites, as our Author observes; and an infinite Number of Pagans, who neither did or could know that there was such a People in the World, to whom GOD had given particular Laws, being therefore in an absolute Impossibility of having any Acquaintance with them, it cannot be reasonably said, they were under an Obligation of observing them. Thus supposing that the Efficacy of the Sacrifice of JESUS CHRIST cannot be extended to such as have not had the Assistance of Revelation, though through no Fault of their own, how moral soever they may live; they will not be condemned for not submitting to Laws of which they neither had nor could have any Knowledge; but for a Multitude of other Sins. Their being deprived of such a Means of Salvation, which GOD was not obliged to allow them, will be their Misfortune, not their Crime. As to those Pagans who lived in the Neighbourhood of Judea, and thus had it in their Power to embrace Judaism, as GOD did not forbid their being received when they offered themselves, so neither did he command them to be circumcised, to qualify themselves for sharing the Advantages of the Mosaick Law. Gronovius was sensible of this, and even gives a Reason for it, which evidently shews the Laws of Moses, as such, did not oblige the Pagans. The Prophets, says he, were not to encroach on the Functions of the Messiah, who alone was to unite the Nations, call all Men, and render the Church universal. Eusebius, in his Evang. Demonst. says, The Law of Moses was delivered only to the Jews, and that while they remained in their own Country. Whence he infers, that therefore there was a Necessity of another Prophet, and another Law. Lib. I. Cap. I. See Mr. Le Clerc’s Prolegomena to the Eccl. Hist. Sect. I. Cap. VIII. § 10.

[2] The learned Gronovius objects, that the Laws of the Decalogue are universally obligatory, tho’ the short Preface which ushers them in is addressed to Israel, whom GOD had brought out of Egypt. But, beside that the fourth Commandment, relating to the Observation of the Sabbath, was only for the Jews, as appears from the whole Tenor of the Words in which it is drawn up; and that the Reason of the Fifth, that thy Days, &c. evidently proves the same in regard to that; if the Pagans lay under any Obligation to practise the moral Parts of the Decalogue, it was not as they were a Set of Laws delivered from Heaven on Mount Sinai, but as so many Precepts which all Men may learn from natural Reason. So that Ziegler’s Criticism does not affect our Author, whom he impeaches of not distinguishing between the Moral, Ceremonial, and Judiciary Laws.

[3] υσεβες κα οβούμενοι τν Θεν not σεβόμενοι, as our Author, who has taken this from the Epithet given to Cornelius the Centurion, Acts x. 2. This Sort of Strangers are likewise called simply, ι σεβόμενοι λληνες, Greeks who feared or adored (GOD) Acts xvii. 4. For nothing is more groundless than the Assertion of Gronovius, who says, They were so called in relation to their Conversion to Christianity, not in regard to their former State. It is impossible to give into this Thought, if we read the Words of St. Luke with ever so little Attention.

[4] And Tit. De Synedrio, Cap. XI. Grotius. The Quotation of Tit. De Rege is false, as we are told by Boecler, on the Credit of Wagenseil, Not. p. 175.

[5] Of such Persons see also Exod. xii. 45. Grotius.

[6] Such a Stranger is distinguished from a Proselyte, or circumcised Stranger; as appears from Numb. ix. 14. Maimonides talks much of these pious uncircumcised Persons, in his Treatise On Idolatry, Cap. X. § 6. The same Writer, in his Com. on Misnajoth, and elsewhere, says, that such pious Gentiles will partake of the Happiness of the World to come. St. Chrysostom, in his Exposition of Romans ii. has these Words, Of what Sort of Jews, and of what Sort of Greeks does he here discourse? Of those who lived before the Appearance of Christ; for he has not yet brought his Discourse down to the Times of Grace. To which he adds, He (the Apostle) here speaks not of the idolatrous Greeks, but of such of them as worshipped GOD, of Men who follow the Dictates of natural Reason, of Men, who except only that they do not observe the Jewish Ceremonies, practise all the Duties of Piety. He instances in Melchizedeck, Job, the Ninevites, and Cornelius the Centurion. He afterwards repeats it, that by the Term Greek, the Apostle means not an Idolater, but a pious and virtuous Man, not subject to the Ceremonies of the Law. He pursues the same Ideas in explaining those Words of St. Paul, 1 Cor. ix. 21. To them that are without Law, as without Law. And in his XII. Homily De Statuis, he observes, that the Apostle using the Word Greek, does not thereby mean an Idolater, but a Man who worships one GOD, without being tied down to the Observation of the Jewish Rites; such as Keeping of the Sabbath, Circumcision, and the several Sorts of Purifications; but yet makes the Study of Wisdom and Piety appear through his whole Conduct. Grotius.
The Author, at his Entrance on this Note, seems to appropriate the Term Proselyte to those Pagans who had intirely embraced Judaism. But it is well known, that the other Strangers, settled among the Jews, were likewise called Proselytes; because, in Reality, tho’ they were not subject to the Observation of the Mosaick Ceremonies, they were absolutely obliged to renounce Pagan Idolatry, and make a Profession of worshipping the one true GOD, the Creator, which was the great and fundamental Article of the Jewish Religion. These therefore were termed Proselytes of the Gate, to distinguish them from the Proselytes of Justice, or such as were naturalized. The learned Gronovius is mistaken, when he tells us that Cornelius forbore making an open Profession of Judaism, for Fear of losing his Post in the Army. Nor, says that Commentator, could he have retained the Title of a Roman Citizen, which was a requisite Qualification for bearing Arms in the Roman Troops; or at least, for enjoying an honourable Employment in them. For, beside that we find nothing in the whole Account given of him, Acts x. which gives us any Room to suspect he was not publickly a Proselyte of the Gate, is not the Example of St. Paul, who, tho’ a Jew by Birth, was a Roman Citizen, of itself sufficient to defeat this Argument? And is it not surprising, that Gronovius should entirely forget, or take no Notice of so well known an Example? See Orbis Romanus, by the late Baron Spanheim, Exerc. I. Cap. XVII. which affords a great Number of Instances and Authorities to this Purpose. See also what our Author says in the following Chapter, § 7. num. 5.

[7] Here the learned Gronovius replies, that this proves only, that GOD allowed these Strangers Liberty of Conscience, but it does not thence follow, that they were exempt from all Obligation of submitting to the whole Law. But, since GOD absolutely required they should observe certain Laws, as that against Idolatry; so that without a Compliance with that Prohibition, they were not permitted even to live in the Country, he plainly discharged them from the Obligation of submitting to the rest. This is insinuated in the Reason given in the Passage under Consideration: For, says GOD, thou art an holy People, unto the LORD thy GOD. That is, You Israelites ought not to eat of what is forbidden by the Laws, established for you in particular; but these Strangers are dispensed with in that Point, because those Laws were not given for them. So that it is surprising our Commentator should alledge those Words as a Proof of what he asserts, when they make directly against him.

[8] Such as the Prohibition of working on the Sabbath Day, Exod. xx. 10.

[9] To the Passages of Scripture produced by our Author, we may add the Testimony of Josephus, De Bello Jud. Lib. II. Cap. XXX. p. 809, 810. Edit. Lips. See Mr. Le Clerc on Esdras vi. 10. The learned Gronovius pretends that GOD allowed Strangers to pray and offer Sacrifices in the Temple of Jerusalem, only with a view of rendering them in some Manner tributary to the Jews; as he permitted that People to carry off the Spoils of the Egyptians, and Hiram King of Tyre to furnish Solomon with Materials for building the Temple. But this great Critick did not observe Solomon’s Words at the Dedication of the Temple, 1 Kings viii. Moreover, concerning a Stranger that is not of thy People Israel, but cometh out of a far Country for thy Name’s sake.... Hear thou in Heaven, thy Dwelling-Place, and do according to all that the Stranger calleth to thee for; that all People of the Earth may know thy Name, to fear thee, as doth thy People Israel. From which it is evident, that GOD accepted of the Homage of Strangers, when offered with pious Dispositions, as Solomon supposes they might be; so that GOD had a very different View on this Occasion from what our Commentator pretends: Nor is the Passage quoted from Tacitus, for proving that the Jews were enriched by the Offerings and Presents of the Pagans, well applied, Every one of that detestable People sent their Tribute thither, in Contempt of the Religion of the respective Countries in which they lived; and thus the Jews grew rich. Pessimus quisque, spretis Religionibus patriis, Tributa & Stipes illuc congerebant; unde auctae Judaeorum res. Histor. Lib. V. Cap. V. where Tacitus evidently speaks of the Money which the Jews themselves dispersed through several Parts of the World, transmitted every Year to Jerusalem; Money raised by the Sale of their First-Fruits. That this was their Practice, appears from the Passages of Philo and Josephus, quoted by Justus Lipsius in one of his Notes, which Gronovius himself has inserted in his Edition of the Latin Historian, from whom the Passage is taken.

[10] See Josephus, where he treats of Solomon’s Temple. Grotius.
The Place allotted for Strangers, was called The Court of the Gentiles. The Jewish Historian, in several Parts of his History, speaks of a Prohibition against passing the Limits of it. See Antiq. Jud. Lib. XII. Cap. III. Lib. XV. Cap. ult. De Bello Jud. Lib. VI. Cap. XIV. Contra Apion, Lib. II. There is no Mention of this Court in the Old Testament; but from Ezekiel xliv. 7, &c. it may be inferred, that there was originally an Inclosure round the Court of Israel, where Strangers were allowed to enter, and perform their Devotions. See Selden, De Jure Nat. & Gent. secund. Hebr. Lib. III. Cap. VI.

[11] We have a Reflection to the same Purpose in St. Hilary, on Matt. xii. Grotius.
Our Author, in his Treatise of The Truth of the Christian Religion, B. V. § 7. joins to these the Example of Moses, who did not exhort Jethro, his Father-in Law, to embrace the Ceremonies of the Law, which he had delivered to the Israelites by Divine Direction. He likewise observes, in a Note on that Place, that some of the Mosaick Laws were impracticable to the Generality of other People; as those relating to the First-Fruits, Tenths, and solemn Feasts; which were to be observed in only one Place in Judea, where it was impossible for all the Nations of the World to convene.

[12] See Josephus, Antiq. Jud. Lib. XIII. Cap. XVII. Ptolom. Lib. I. De Vita Herodis, as quoted by Ammonius under the Word δουμαίοι. Selden, De Jure Nat. & Gent. secund. Hebr. Lib. II. Cap. II. and my 19th Note on this Section.

[13] That Father of Historians speaks of the Egyptians and Ethiopians, and the People of Colchis, Lib. II. Cap. XCI, CIV. He asserts that the Use of Circumcision was derived from the Egyptians to the other two Nations, as also to the Phenicians and to the Syrians, who inhabited Palestine; by whom he understands the Jews, who, according to him, acknowledge the Truth of this Account, as far as it relates to them. See also Diodorus of Sicily, Lib. I. Cap. XXVIII. and Lib. III. Cap. XXXII. p. 17 and 115. Edit. H. Steph.

[14] See his Geography, Lib. XVI. p. 771. Edit. Paris. where he treats of the Cacophagi, a People of Ethiopia, and p. 776. in his Account of the Troglodytes, some of whom, he tells us, are circumcised after the Manner of the Egyptians, spoken of Lib. XVII. p. 824.

[15] See his little Piece On Circumcision, p. 810, 811. Edit. Paris.

[16] In his Dialogue with Tryphon, where he speaks of the Idumeans.

[17] In his Answer to Celsus, Lib. V. where he observes, that the Egyptians, and the People of Colchis had not the same Reason for Circumcision, that obliged the Jews to the Practice of that Ceremony; and that the Jews themselves made a Distinction between their Circumcision and that used by the Ishmaelites of Arabia, tho’ the People last mentioned were Descendants of Abraham, and Ishmael, the Founder of their Nation, had been circumcised by the Hands of that Patriarch, Pag. 263. Edit. Cantab.

[18] That Father, in his Stromata, Lib. I. Cap. XV. p. 354. Edit. Oxon. says that Pythagoras, travelling into Egypt, was circumcised in that Country, in order to qualify himself for being initiated in the Mysteries of the Egyptians, and enabling him to learn the Philosophy of their Priests.

[19] He says, Haeres. XXX. § 30. that the Egyptians, the Saracens, or Ishmaelites, the Samaritans, the Idumeans, and the Homerites, were circumcised as well as the Jews; but that most of these People used that Ceremony out of Custom, without assigning any Reason for it, and by no Means with a View of obeying the Divine Law which prescribed it. Hence we may observe, that tho’ the first Persons who neglected Circumcision, and thus occasioned its being abolished among the Nations descending from Abraham, were to blame, yet the Law of Circumcision ceased to oblige their Posterity, who had no Knowledge of that Institution: So that the Action of Hyrcanus, who forced the Idumeans to be circumcised, must necessarily be considered as violent and unjust, and not authorized by him who is the sole Master of Men’s Consciences. Besides, the same Wagenseil, mentioned in Note 4 of this Paragraph, observes, after Boecler, that Maimonides says the direct contrary of what our Author advances in this Place, viz. that all Abraham’s Posterity were obliged by the Law of Circumcision, and that the Jews forced the Idumeans to observe that Ceremony.

[20] In his Commentary on Jerem. IX. Vol. V. p. 287. Edit. Bas.

[21] In his third Question on Exodus.

[22] Those Ethiopians whom Herodotus ranks among the circumcised, seem to have descended from the Posterity of Keturah: St. Epiphanius calls them Homerites.
The Homerites were part of the Idumeans; and our Author does not remember that he himself said so, in his Notes on The Truth of the Christian Religion, Lib. I. § 16. p. 60. Edit. Amsterd. Cleric. He both there and here supposes the Truth of the common Opinion, in his Time concerning the Origin of Circumcision, viz. that it was derived from the Hebrews to all other Nations. But, could he have read what Sir John Marsham and Doctor Spencer have written on that Subject, I imagine he would have changed his Opinion, and acknowledged, that Circumcision was practised among the Egyptians before GOD made it a Sign of his Covenant with Abraham, and his Descendants, to whom he prescribed that Ceremony in a different Manner, and with a different View than those which induced the Egyptians to use it. See Mr. Le Clerc on Genesis xvii. 8, &c.

[23] St. Chrysostom understands this of natural Inferences, Τος τς θσεως λογισμος. To which he adds, They are therefore the Objects of our Wonder, because they stood not in need of a Law.... Conscience, and the Use of Reason, are sufficient, instead of a Law. Tertullian asserts, that Before the Law of Moses, written on Tables of Stone, there was an unwritten Law, which was understood naturally, and observed by the Patriarchs. Adv. Jud. Cap. II. To these may be added, a Thought of Isocrates, If Men would govern a State well, they ought not to fill the Portico’s with Letters, but carve the Maxims of Justice on the Minds of the Citizens. Areopag. p. 148. Edit. H. Steph. Grotius.
This Passage is a little too far fetched. For even positive Laws, and several other Things, not derived from natural Light common to all Men, may be carved on the Mind or Soul, by Force of Instruction and Practice: So that what the Grecian Orator says, rather supposes in itself that the Rules of Justice, tho’ grounded on natural Reason, are but little known, and generally neglected.

[24] This is the Apostle’s true Meaning, the Words Nature and naturally are often used by the Greek and Latin Authors, in Opposition to the Way of Instruction, which gives us the Knowledge of certain Things. We find St. Paul, speaking of a Custom established in his Time, says, Doth not Nature itself teach you, that if a Man hath long Hair it is a Shame unto him? But if a Woman hath long Hair it is a Glory unto her. 1 Cor. x. 14, 15. This Exposition is justified by daily Observation; several Things are learnt without a Master, which are looked on as what we know naturally. Much more then may it be said, that the Gentiles, who were deprived of Revelation, did of themselves, and without that Assistance, know the Precepts of Morality, which the natural Light of Reason led them to discover, and which were the same with those prescribed by the Law of Moses to the Jews; so that when a Pagan acted according to those Precepts, He did by Nature the Things contained in the Law, Rom. xi. 14. Which shewed the Work of the Law (that is, the moral Precepts of the Law) written in his Heart, or in his Mind, v. 15. that is, he could easily form such Ideas, and retain them in his Memory. See, concerning this last Expression, Mr. Le Clerc’s Ars Critica. Tom. I. p. 163, &c. Edit. 4.

[25] In the last Editions of this Historian, and in those which have the best Reputation among the Learned, we find Tzates, which was probably the true Name of that Adiabenian Prince, who was converted to Judaism, with his Mother Helena.

[26] Tryphon the Jew, making some Abatement in this Point, owns to Justin Martyr, that If he persisted in that Manner of philosophizing, he had some Hopes left of a better State. Grotius.

[27] Thus Justin Martyr, in his Dialogue with Tryphon, observes, that A Proselyte, who receives Circumcision, and is ranked among the (Jewish) People, is considered as one of the same Country.

[28] Such Proselytes were therefore admitted to the Celebration of the Passover. Grotius. See Exod. xii. 19, 47, 48.

[29] St. Paul frequently argues against this Opinion, particularly in his Epistles to the Romans and Galatians.

[30] See what I have said in my second Note on this Paragraph.

[1] That is, which consists solely in the Silence of the Law. For Silence alone is not an incontestable Proof, that the Legislator approves of what he does not forbid. We can only infer from it, that he does not design to employ the Means in his Power for hindering Men from doing such Things. The only Case in which Silence can be taken for a Mark of Approbation, is when it clearly appears, that the Legislator designed to forbid whatever he judged to be evil. Now we have no Reason to believe that GOD designed to forbid, positively, by the Law of Moses, every Thing that is any way evil. On the contrary, it was even necessary, that he should not prohibit some such Things. In reality, when GOD gave written Laws to the Jewish Nation, he acted rather as the temporal Master and Sovereign of that People, than as the perfect Teacher of Mankind in general. For which Reason all the Punishments, with which he threaten’d the Offenders, were of a temporal Nature. As therefore there is no Civil Society, whose Interest permits that every Thing contrary to some Virtue, or some Law of Nature, should be attended with some Penalty; GOD would have acted contrary to his own Wisdom, if, in Quality of Civil Legislator of the Jews, he had not left several Things in themselves evil unpunished, and consequently, been silent on such Articles, especially when he had to do with so gross and stubborn a People. Thus, for Example, Murder was punished with Death, Levit. xxiv. 21. Numb. xxxv. 16, 17, 30. And that with good Reason: A Civil Society, in which Men might kill one another with Impunity, could not subsist; but such Motions of Anger as tended only to do some Injury, were not prohibited; because if the Legislator had annexed a Punishment to a Thing so common among all People, and from which the Jews, in particular, would have much Difficulty to abstain, the Regulation would have produced more Harm than Good. See Matt. v 21, &c.

[2] See St. Chrysostom, on the Close of Rom. vii. Grotius.

[3] I should think that we ought to reason in a different Manner on Divine from what we use to do on Human Laws. The Permission granted by human Laws, however it may be given, never of itself implies any Approbation of the Legislator, but only supposes that he judges proper not to punish the Thing in Question. The Reason is, that the Design of Legislators, considered as such, is to make the best Provision in their Power, for the Regulation of each Man’s exterior Actions, in order to secure the publick Safety and Tranquillity; and not, properly speaking, to make Men good. But the same Thing cannot be said of GOD. In what Manner soever he acts, he always proposes making Men virtuous; and consequently, all positive Permissions from him are certain Proofs of Approbation. He may indeed be silent in regard to certain Things which imply some Vice, and leave them unpunished in this World, for the Reason given in Note 1. on this Paragraph; and that the rather, because, on due Consideration, it will appear that the Evil of such Things may be easily discovered by Consequences drawn from their Conformity with what is expressly prohibited, or their Incompatibility with what is clearly commanded. But GOD cannot positively permit the least Thing evil in its own Nature, even when he acts as a temporal Monarch; for that Character does not divest him of his Sanctity, but he still may and ought to be thought to approve of every Thing, at least as innocent, which he permits either in express Terms, or by a necessary Consequence from some formal Law or Ordinance. These then, in my Opinion, are the Consequences which may be drawn from the Divine Permission, when the Reasons deduced from the Nature of Things, which must always be considered, appear doubtful. First, When GOD permits a Thing in certain Cases, and to certain Persons, or in regard to certain Nations, it may be inferred, that the Thing permitted is not evil in its own Nature. For he would act in Contradiction to himself, if he authorized any Thing evil, in any Circumstances, or in Favour of any Person. For Example, Exod. xxii. 2, 3. Permission is given to kill a Thief in the Night, but not in the Day: Whence we may safely conclude, against the Opinion of some Doctors, too rigid on that Point, that when we resist an unjust Aggressor so far as to kill him, tho’ he attempts only our Goods, this Defence is not criminal in itself, or contrary to the Law of Nature. GOD forbid the Jews to lend Money to one another on Interest; but he permitted that Practice in regard to Strangers, without excepting the Proselytes of the Gate: Therefore lending on Interest is not evil or unlawful in its own Nature, whatever some Divines and Lawyers may pretend. The Consequence is demonstrative, and sufficient to justify such Contracts, when reduced to lawful Bounds. The Law of Moses, Deut. xvii. 17. forbids Kings to multiply Wives to himself, lest they should induce him to violate the Law: This Prohibition implies a tacit Permission, both for them and all other Men, to have more than one Wife, without which it would be superfluous: Polygamy therefore is not in its own Nature evil and unlawful. Secondly, When GOD regulates the Manner of a Thing, or makes some other Regulation in regard to that Thing, which necessarily supposes it permitted; we are to enquire whether this is one single occasional Action, or a Thing, either by itself or by its Consequences, reduced to a Habit, and a continual Practice. In the last Case, a Permission always implies a real Approbation of the Thing in Question, as in its own Nature lawful. Thus it is impossible that GOD should permit the Practice of Robbery, Piracy, Assassination, Duelling, &c. under any Sort of Conditions. When therefore we find him directing the Manner of Divorces, and regulating certain Cases which suppose the Permission of Polygamy, as in Deut. xxi. 15. we may very reasonably conclude, that neither Divorces nor Polygamy are essentially contrary to the Law of Nature. See our Author’s Application of this Principle in the following Chapter, §2. num. 2. in order to shew, that all Sorts of War are not in their own Nature unjust. But when it is one single Act, which does not intail a Series of Sins, the Permission may imply no more than Impunity, without any Prejudice to the Divine Sanctity. Of this Kind is the Permission granted by the Law of Moses to the Revenger of Blood, that is, to the nearest Relation or Heir of a Person killed without any Malice or premeditated Design; this Revenger of Blood was allowed to kill such an involuntary Murtherer, if he found him out of his Asylum, even tho’ he had been declared innocent by the Judges; He shall not be guilty of Blood, Numb. xxxv. 27. But it does not follow, that GOD considered this Action as innocent before the Tribunal of Conscience, and conformable to the Law of Nature; but only, that he thought proper to grant an Impunity in that Case, before the Civil Judge, to a Man who had killed another through a Spirit of Revenge. This was one single Act, and the Person might be sensible of its Injustice, and repent of it, after the first Motion of his Passion was over: Besides, the Person thus killed was in fault, who might have been secure, had he not left his Asylum against the express Orders of GOD.

[4] JESUS CHRIST, for Example, has abolished all the Laws in general, which related to the Distinction of Meats. If therefore any Civil or Ecclesiastical Power pretends to oblige Men to Abstinence from any Sort of Food, on a Principle of Religion, such an Attempt is an open Violation of the Christian Liberty, established by our Saviour. I suppose this done on a Principle of Religion; for the Case will be widely different, if the Use of certain Meats are prohibited for good Reasons, founded on the Interest of the State. The Sovereign has an undoubted Power to impose such Abstinence in that View; as he may be allowed to decline making the wisest political Regulations in the Mosaick Law his Model, when they are not suited to the Constitution of the State under his Government.

[5] Thus JESUS CHRIST having repealed the Husband’s unlimited Permission of putting away his Wife for any Cause whatever, and without any other Reason than his own Will; a Christian Prince cannot make a Law, permitting Divorces in that Manner, only obliging the Husband to testify in a Writing delivered to his Wife, that he will have no farther Commerce with her.

[6] Christian Liberty has done no Prejudice to Innocence; the Law of Piety, Sanctity, Humanity, Truth, Fidelity, Chastity, Justice, Mercy, Benevolence, and Modesty, remain intire. Tertul. De Pudicit. Cap. VI. Grotius.

[7] We ought to shew greater Degrees of Virtue, because we have now a plentiful Effusion of the HOLY SPIRIT, and the Advantages resulting from the Coming of CHRIST are very great. Chrysost. De Virginitate. XCIV. See the same Father, in his Discourse, tending to shew that Vice is occasioned by Negligence. De Jejuniis III. And on Rom. vi. 14. vii. 5. As also St. Irenaeus, Lib. IV. Cap. XXVI. The Author of Synopsis Sacrae Scripturae, among the Works of St. Athanasius, writing of Matt. v. observes, that our Lord enlarges the Extent of the Precepts of the Law. Grotius.

[8] The same Use is made of this Law, in regard to Christians, by St. Irenaeus, Lib. IV. Cap. XXXIV. And St. Chrysostom, on the Close of the last Chapter of 1 Cor. and on Ephes. ii. 10. Grotius.

[1] Cicero gives this as the Opinion of the Stoicks, which he approves of, and confirms, De Finib. Lib. III. Cap. V. VI. VII. See also Lib. V. Cap. VII. and Pufendorf, B. II. Chap. III. § 14.

[2] As every other Nature only then shews what is its real Good, when it is arrived to Perfection; so what makes the real Good of Man is not to be found in Man, till Reason is perfect in him. Senec. Ep. CXXIV. Grotius.

[3] That is most valuable in every Being, to which it is destined by Nature, and which makes its Excellence. What is most valuable in Man? Reason. Seneca, Epist. LXXVI. See also Epist. CXXI. and CXX. V. Juvenal says, that, according to the Doctrine of Zeno, there are some Things which we ought never to do, even tho’ our Life was at stake.

——— Melius nos
Zenonis praecepta monent: Nec enim omnia, quaedam
Pro vitâ facienda putat ———

Sat. XV. v. 106, &c. Grotius.

Aulus Gellius, quoted by our Author in his Margin, says, When we are reduced to that Strait, we are obliged to expose ourselves to suffer some exterior Inconveniency or Damage, rather than be wanting to the inviolable Rules of Decorum, Lib. XII Cap. V.

[4] See our Author’s Application of this Principle to the natural Motions of Revenge, B. II. Chap. XX. § 5. num. 1.

[5] Thus, for Example, it is never decent (honestum) nor, consequently, allowable by the Law of Nature, to fail in Point of Gratitude to a Benefactor; to take another Man’s Goods, to which we have no Right; to break a valid Promise or Agreement; to prejudice any one’s Honour; to deprive the Innocent of Life, &c. In all which there may be different Degrees of Turpitude, according to the Variety of Circumstances; and as the Ingratitude, the Robbery, the Failure, the Affront, or the Murder, are more or less heinous; but in regard to the Quality of the Actions themselves, the least Fraud, for Example, is not less contrary to the Rules of Decorum, and the Law of Nature, than the greatest.

[6] The Author does not here speak of the Application of the general Maxims of Decorum, and the Law of Nature to particular Cases, as the Commentators on this Work have imagined, who instance in the several Manners of discharging the Duties of Beneficence, Liberality, Friendship, &c. referring to B. II. Chap. I. § 5. where he treats of the Extent of Time allowed for a just Defence of one’s self. The Question in this Place turns on the Nature of Actions in general, as it appears from the Examples to which our Author himself applies his Principle. Thus, independently of any positive Law against Polygamy, it is commendable and decent, according to our Author, to be content with one Wife; but the Man who takes two, commits no Fault: That Action is not contrary to the first Sort of Decorum, to which the Law of Nature, properly so called, bears a Relation.

[7] The Emperor Justinian congratulates himself, on having given the Force of a Law to a Thing of this Nature, which the antient Lawyers had only advised, viz. That neither the Heir, nor any one under his Jurisdiction, should be admitted Witness to a Will. Institut. Lib. II. Tit. X. De Test. ordinandis, § 10. See the Theodosian Code, Lib. III. Tit. VIII. De secundis Nuptiis, Leg. II. With Godfrey’s Comment on that Law, Vol. I. p. 285.

[8] De Cyri Institut. Lib. II. Cap. III. § 5. Edit. Oxon.

[9] This is very well explained by a Passage in Pliny. For all Animals have this Understanding, and are sensible, not only of their own Advantages, but also of their Enemies Power to hurt them: They know the Use of their own Weapons, the proper Opportunities for an Attack, and the weak Side of their Adversaries. Hist. Nat. Lib. VIII. Cap. XXV.

[10] The same Observation is made by Martial, III. Epigr. 58. v. 2.

Vitulusque inermi fronte prurit ad pugnam.

Porphyry says, that Every Animal knows which Part of him is weak, and which strong: That he takes Care of the former, and makes use of the latter; as the Panther of his Teeth, the Lion of his Claws and Teeth, the Horse of his Hoofs, and the Ox of his Horns. De Abst. Animal. Lib. III. p. 268. Edit. Lugd. 1620. Irrational Animals, says St. Chrysostom, carry their Arms on their Bodies; thus the Ox has his Horns, the wild Boar his Tusks, the Lion his Claws: But GOD has given me Arms distinct from my Body, to shew that Man is a tame and sociable Creature, and that I am not to employ those Arms at all Times; for sometimes I quit my Dart, and at others I handle it: That I might therefore be free from Incumbrance, and not be obliged to carry my Arms always with me, he has made them separate from my Nature. De Statuis, Hom. XI. This passage agrees with that quoted from Galen in the Text. Grotius.

[11] But so that he is designed by Nature rather for Peace than War. See Pufendorf, B. VIII. Chap. VI. § 2.

[12] As the Body of Man is formed in such a Manner, that he cannot, like other Animals, provide for his own Defence and Security, by Horns, Teeth, or Flight; Nature has given him a strong Breast, and Arms, that he might defend himself with his Hands, and by presenting his Body as a Shield. Cassiodore, De Animâ, p. 296. Edit. Paris. Grotius.

[13] De Partib. Anim. Lib. IV. Cap. X. p. 1034. Edit. Paris.

[14] See Pufendorf, B. II. Chap. V. § 1.

[15] De Offic. Lib. III. Cap. V.

[16] De Offic. Lib. I. Cap. XI.

[17] Epist. ad Famil. Lib. XII. Ep. III.

[18] Digest. Lib. XLIII. Tit. XVI. De vi & de vi armatâ. Leg. 1. § 27.

[19] De Arte amandi, Lab. III. v. 492.

[1] See Josephus Antiq. Jud. Lib. I. Cap. VIII. where he quotes the Passage of that profane Historian.

[2] Or rather an antient Poet, who assumed the Name of Orpheus Clement of Alexandria, Stromat. Lib. V. p. 723. Edit. Potter. Oxon. And Euseb. Praep. Evang. Lib. XIII. Cap. XII. have preserved this Fragment, to which our Author here alludes, and which he himself has quoted in a Note on his Treatise Of the Truths of the Christian Religion, Lib. I. § 16. p. 66. Edit. 1717. And in his Comment on Matt. v. 31.

[3] Our Author found the Expression in this Sense, in 1 Sam. xvii, 47. where David says to Goliath, All this Assembly shall know that the LORD saveth not with Sword and Spear; for the War (Battle, E. B.) is the LORD’s, and he will give you into our Hands. But it is more natural to understand by these Words, The War is the LORD’s, that the Success of the War depends on GOD; as Mr. Le Clerc explains them. Nor does our Author produce any other Passage to the same Purpose; he even gives a different Exposition, at the Close of this Paragraph, to a Text which at first Sight might seem proper to be alledged in this Place. He was thinking of the Rabbinical Distinction between commanded and voluntary Wars. On which see Cuneus, De Rep. Hebr. Lib. II. Chap. XIX. Schickard, De Jure Regio, Cap. V. and Selden, De Jure Nat. & Gent. &c. Lib. VI. Cap. XII.

[1] Orat. pro Milone, Cap. IV. Ibid. Cap. XI.

[2] Seneca says, The most secure Means of Defence is always at hand; every Man being charged with the Care of his own Person. Ep. CXXI. p. 604. Edit. Gronov. Var. Quintilian lays it down as a Rule for an Orator, To speak in his Client’s defence, before he attempts to retort the Crime on the Accuser; because our own Safety is naturally preferable to the Destruction of our Adversary. Inst. Orat. Lib. VIII. Cap. II. p. 403. Edit. Obrecht. Sophocles therefore, speaking of Hercules, justly observes, that Had he defended himself fairly and openly, (against Iphitus) Jupiter would have pardoned his killing him. Trachin. v. 281, 282. p. 341. Edit. Steph. See also the Laws of the Wisigoths, Lib. VI. Tit. I. Cap. VI. Grotius. The Quotation from Seneca is not directly to the Purpose.

[3] Therefore if I kill your Servant, who is a Highwayman, and lays Wait for me, I shall be innocent; for natural Reason, &c. Digest. Lib. IX. Tit. II. Ad Leg. Aquil. Leg. IV.

[4] Digest. Lib. I. Tit. I. De Just. & Jure, Leg. III.

[5] De Bell. Jud. Lib. III. Cap. XXV. p. 852. Edit. Lips.

[6] See § 11. of Chap. I.

[7] Digest. Lib. IX. Tit. I. Leg. I. § 3, 11.

[8] Seneca reasoning in the same Manner on another Occasion, says, that Beasts, which are not supposed to understand what a Benefit is, or have any Notion of its Value, are gained by constant good Usage. De Benef. Lib. I. Cap. III. See the whole Passage, and compare it with that of Philo the Jew, quoted in a Note on § 7. of the Preliminary Discourse. Grotius.

[9] The first Clause only occurs in Pliny, Hist. Nat. Lib. VII. but I do not find the following Words in that Author: They probably belong to some antient Author, as far as I can judge by the Stile. This Mixture was occasioned by our Author’s taking the Quotation at second hand; for I believe I have discovered whence it was taken. Marcus Lycklama, in his Membranae, a Book published some Years before this, explaining Law III. of the Title in the Digest. De Just. & Jure, and taking occasion to treat of the natural Right of Self-Defence, Lib. VII. Eclog. 42. quotes this Passage of Pliny, without specifying the Place, and subjoins what here follows in the Text of Grotius.

[1] Digest. Lib. I. Tit. I. De Justitia & Jure, Leg. V.

[2] Cornelius Nepos, in his Life of Themistocles, says, that General freely owned to the Lacedemonians, that the Athenians had, by his Advice, secured their Temples and Houses with Walls, in order to defend them more effectually against the Enemy; an Action allowable by the common Law of Nations. Vita Them. Cap. VII. num 4. Edit. Cellar. Grotius.

[3] See our Author, B. III. Chap. VI. § 27.

[4] Lib. XLII. Cap. XLI.

[5] Digest. Lib. I. Tit. I. De Just. & Jure. Leg. III. See what I have said on Pufendorf, B. II. Chap. III. § 3. Note 11. and § 23. Note 3. from which it appears, that Florentin, in this Law, spoke of what our Author terms the Law of Nature, whether the Question concerns the Law of Nature or the Law of Nations, in the Manner used by the antient Lawyers in explaining that Distinction. The same is to be said of Law V. of the same Title, quoted by our Author, as the first, Note 1. for when the Lawyers refer War to the Law of Nations, they only mean, that whereas the natural Instinct, common to all living Creatures, prompts Man to defend himself in the best Manner he can; Reason, which is the Principle and Rule of the Law of Nations, forbids them to make War, even in their own Defence, without a just Cause, and directs them to keep within certain Bounds. See Cujas on the Laws in Question. Vol. VII. p. 23, 29, &c. Edit. Fabrot.

[1] See Chap. I. § 9. Note 5.

[2] See my 4th Note on § 15. of the same Chapter.

[3] Quoted by Aristotle, Ethic. Nicom. Lib. V. Cap. VIII. Apollodorus gives the Law of Rhadamanthus in this Manner, Let him who takes his Revenge on an unjust Aggressor escape with Impunity. Biblioth. Lib. II. Cap. IV. § 9. Edit. Th. Gale. Grotius.

[4] Controvers. Lib. V. Praefat. p. 350. Edit. Gronov. 1672.

[5] Contactum ac commercium. The Author here alludes to the Defilement or Uncleanness, which the Antients thought was contracted by touching a Man who had killed another, even innocently or lawfully. See Pufendorf, B. II. Chap. V. §. 16. Note 2. And Elian, Var. Hist. Lib. VIII. Cap. V. with the late Mr. Perizonius’s 4th Note; as also Everhard Feith, Antiq. Homeric. Lib. 1. Cap. VI. But these confused and obscure Ideas were not in Being in Cain’s Time.

[6] De Legib. Lib. IX. p. 864, &c. Vol. II. Ed. H. Steph.

[7] Orestes, v. 511, &c.

[*] In Lib. III. De Bell. Pelopon. § 45. Edit. Oxon. Servius, on 1 B. of Virgil’s Aeneid. v. 136, 140, observes that All the Punishments inflicted by the Antients were pecuniary; which he concludes from the Phrase Lucre commissa, used in that Place. The same Inference is drawn from those of Scelus expendere, which occurs II. Lib. v. 229. and Pendere poenas, B. VI. v. 20. alluding to the Practice of those early Times, when Money was delivered by Weight. Pliny tells us, that The first capital Sentence was passed in the Areopagus, Hist. Nat. Lib. VII. Cap. LVI. p. 478. Edit. Hack.

[*] This Passage is taken from his Instit. Div. Lib. II. Cap. X. Num. 23. Edit. Cellar. and is immediately preceded by these Words, They (the antient Romans) used to forbid their Exiles the Use of Fire and Water; for as yet, &c. For it was not their Custom to put a Citizen to Death, or even banish them in Form; they only laid a strict Prohibition against furnishing the Criminal with any of the Conveniencies or Necessaries of Life, and thus reduced him to a Necessity of quitting the Country.

[8] Or rather, he had not then been guilty of such a Crime; but promised himself Impunity, on the Supposition of his committing it hereafter: For the Words of Moses will admit of that Sense. Grotius.
It does not fully appear that Lamech promised himself Impunity, by Virtue of GOD’s Prohibition in relation to Cain, when he said, Gen. iv. 23, 24. I shall slay, (I have slain) a Man to my wounding, and a young Man to my hurt. If Cain shall be avenged sevenfold, truly Lamech seventy and sevenfold. I think it much more probable, that this Speech of Lamech is a mere Rodomontado, and a Boast of his Strength, by which he imagined himself able to take a Revenge for the least Injuries done to him, more extensive than the Punishment with which those who should kill Cain were threaten’d. On consulting Mr. Le Clerc’s Comment on the Place, this will appear the most natural Explication of the Words, so that they are of no Use towards establishing the Consequence our Author would draw from them. It is sufficient for his Purpose, that nothing can be inferred from them in favour of the Opinion he opposes, concerning GOD’s Prohibition in relation to Cain; for even supposing that Prohibition extended to all other Cases of the like Nature, it was founded on a manifest Reason, on the Cessation of which, that is, on the Multiplication of Mankind, the Prohibition vanished of itself.

[9] Josephus expresses it thus, I command that Men abstain from Murder, and preserve themselves undefiled with Blood, and that those who kill be punished. Antiq. Jud. Lib. I. Cap. IV. p. 10. Edit. Leips. Grotius.

[10] See B. II. Chap. XX. § 8. Num. 8.

[11] See B. II. Chap. V. § 13.

[12] See Selden, De Jure Nat. & Gent. secund. Hebr. Disciplinam.

[13] I find nothing in or near these two Texts, relating to the Subject in Hand.

[14] See our Author’s Treatise, On the Truth of the Christian Religion, Lib. I. § 15. with Mr. Le Clerc’s Note, p. 28. Edit. 1717.

[15] An antient Lawyer has drawn a Comparison between the Laws of Moses and the Roman Law, under this Title, Collatio Mosaicarum & Romanarum Legum. Peter Pithou published that Work for the first Time, at Paris, in 1572; of which we have lately been presented with a beautiful Edition, in the Jurisprudentia Ante-Justinianea, by Mr. Schulting, a learned Professor of Law at Leiden.

[1] The Author, in a Note on this Place, quotes a Passage from St. Jerom, which I at present omit, because he gives it more at large on B. II. Chap. V. § 9. Num. 4.

[2] This Instance is not altogether just. The Law of Nature, rightly understood, requires us in certain Cases to sacrifice our Lives for others, when a considerable Advantage may result from such an Action to the Publick. Thus we find the wise Pagans thought it their Duty to die for their Country. The Christian Religion therefore, only furnishes us with much more powerful Motives for the Practice of this Duty, by proposing the certain Hope of a Life to come, which will make us ample Amends for the Loss of the present. It is the Will of JESUS CHRIST, that we suffer Death for the Gospel; but this is no more than an Extension or Application of the Law of Nature, because nothing is more advantageous to Society, than a sincere and judicious Profession of the Christian Religion, and consequently, than the couragious Resolution of such as sacrifice their Lives for the Interest of its holy Doctrines.

[3] Epist. ad Zenam. We meet with a like Thought in Origen’s Philocalia. Grotius.

[4] The famous Rabbi Abarbanel, on Deut. xxiii. 21. says, the Law allowed the Jews to hate those People. Grotius.

[5] See to this Purpose what has been said in the Close of the preceding Chapter. St. Chrysostom has a beautiful Passage on this Subject, Formerly, says he, so great a Degree of Virtue was not enjoined. It was then allowable to take Revenge for Injuries received, and return Reproach for Reproach, and be solicitous for a massing Riches; to swear, provided it was done with a good Conscience; to take an Eye for an Eye, and hate an Enemy: Nor was there any Prohibition against living luxuriously, being angry, or putting away a Wife and taking another. Nay more, the Law permitted a Man to have two Wives at the same Time; in short, great Indulgence was granted in those and other Particulars. But since the Coming of CHRIST, the Way is become much narrower. De Virgin. Cap. XLIV. In the same Work he says, The same Degree of Virtue was not required from them (the Jews) that is expected from us. Cap. LXXXIII. And in his Discourse on the Coequality of the Son to the Father, he affirms, that the Gospel contains a greater Number of Precepts, and those carried to a higher Degree of Perfection. Vol. VI. Edit. Savill. Grotius.
Several of the Examples alleged by that Father, ought to be understood according to our Author’s Distinction between the Spirit and the Letter of the Law.

[1] Seneca, making an Apology for the true Philosophers, who were falsely accused of despising Kings and Magistrates, asserts that, on the contrary, no Men are more faithfully obedient to Persons in publick Authority; because none have greater Obligations to them, than those who enjoy Ease and Tranquillity under their Protection. Epist. LXXIII. The whole Epistle is well worth reading; in which we have likewise this Observation, Tho’ all enjoy the Benefit of this Tranquillity, those who make a good Use of it, have a greater Share in the Blessing.

[2] Apol. I. p. 32 Edit. Oxon.

[*] These Words may be interpreted a Christian End, or a Death worthy of a Christian. Grotius.

[3] See Mr. Noodt’s Treatise, De Jurisdictione & Imperio, Lib. I. Cap. IV.

[4] The Lawyers usually make this Distinction between the Right of the Sword, and the Power of punishing Criminals without putting them to Death: Thus, for Example, they say, No Man can transfer to another the Power of the Sword which is given him, or that of inflicting any other Punishment. Digest. Lib. L. Tit. XVII. De Diversis Reg. Juris. Leg. LXX.

[5] Though this Proof, and several others which follow it, have a direct Tendency to shew only that Princes and Magistrates, even under the Gospel Dispensation, may, and ought to punish certain Crimes with Death; yet they are to his Purpose, not only for the Reason given at the End of Num. 10. of this Paragraph; but also for another more strong and direct, which he ought not to have omitted, viz. Because there can be no plausible Foundation for condemning War absolutely, but on a Supposition, that the Right of taking away a Man’s Life, especially on the Account of some temporal Advantage, is incompatible with Christian Clemency. Now, if a Prince may and ought to put any of his Subjects to Death, when guilty of certain Crimes, which are sometimes prejudicial only in regard to some temporal Interest, Why may he not innocently take Arms against Strangers? Why should he be more tender of the Lives of Strangers than of those of his own Subjects? See what our Author says farther on capital Punishments, B. II. Chap. XX. § 12, 13.

[6] Contra Crescon. Grammatic. Lib. III. Cap. LI.

[7] Ad Bonis. Ep. L.

[8] In order to compleat our Author’s Argument, we must add what he himself says afterwards, that the Sovereign Power in itself, and according to the Practice of all Nations, includes the Right of making War, and that of punishing certain Crimes with Death. See my 5th Note on this Paragraph.

[9] Edessa is a City in Osroëne; and the Name of Abgarus is very common in that Country, as appears from several Medals, from Tacitus, Appian, and from the Fragments of Dio Capitolinus, lately published, (Excerpt. Vales. p. 476.) as well as from Pieces which have been long extant. Grotius.
This Story of Abgarus’s Epistle to JESUS CHRIST, and our Lord’s Answer, both produced by Eusebius, Hist. Eccl. Lib. I. Cap. XIII. is no better than a mere Fable. See Mr. Du Pin’s Preliminary Dissertation on the Bible, B. II. Chap. VI. § 2.

[10] St. Chrysostom makes this very plain in his Observations on this Text. Grotius.

[11] Tesmar, in his Notes, quotes two Passages from St. Augustin, where he employs this Example to shew that War is not absolutely condemned by the Gospel. In the first he reasons thus, If all Wars were condemned by the Christian Doctrine, the Soldiers in the Gospel, when they asked Advice, for the Security of their Salvation, would rather have been commanded to lay down their Arms, and entirely renounce their Profession; whereas it is only said, Do Violence to no Man, neither accuse any falsely, and be content with your Pay. Now when they are commanded to be content with their Pay, they are not forbid to continue in the military Profession. Epist. V. The other Passage is taken from his CV. Epistle, where that Father reasons from the Example of David, and the two Centurions.

[12] St. Chrysostom says, that To this End Tribunals were erected, Laws made, Punishments appointed, and various Kinds of Penalties enjoined. Serm. ad Patremfidel. Grotius.

[13] To which add, that if the Gospel absolutely condemned War and capital Punishments, such Christians as observed the Precepts of their Religion with the greatest Exactness, would thereby be inevitably exposed to become a Prey to Villains and Usurpers; which is not agreeable to the Goodness and Wisdom of GOD.

[14] Either there is some Omission in this Place, (tho’ all the Editions agree) or our Author expresses himself improperly. If the Political Law continued in force, it follows indeed, that the Jews, when converted to Christianity, ought, if Magistrates, to judge according to those Laws; but it by no Means follows, that they could not on any Account, or for any Reason, decline the Magistracy. The Author probably means, that they cannot decline it merely because the Exercise of it was attended with the Obligation of passing Sentence of Death for certain Crimes. I find nothing, at least in the Books of the Old Testament, from whence it can be inferred, that every one called to the Magistracy was obliged to accept of that Charge. The Jews acknowledged no such Obligation, as appears from a Passage of the Talmud, quoted by Buxtorf, in his Florileg. Hebraic. p. 183. where it is said, that the antient Sages declined publick Offices, and excused themselves from undertaking the Function of a Judge, ’till they saw none else would accept of it; and that even then they did not take Place in the Council, but at the earnest Intreaty of the People and Elders.

[15] The Jews however in our Saviour’s Time, had not the Power of Life and Death, but were under a Necessity of obtaining the Roman Governor’s Permission for executing a Criminal. See our Author’s Commentary on Matt. v. 22. and on John xviii. 31. So that they only declared, according to their Law, such or such a Person guilty of a capital Crime; which supposes, however, that JESUS CHRIST had not abolished the political Laws, and, consequently, is sufficient for our Author’s Purpose, whatever that passionate and injudicious Divine Osiander may say.

[16] For, besides that every one may renounce the Benefit of a Law, without doing any Thing contrary to that Law; the Design of that Law which allowed of Divorces, was not to put Men on dismissing their Wives, but to provide for the Security of the Wife, who would have been exposed to very bad Treatment, among such a People as the Jews were, if a Husband had not been at Liberty to dismiss her when she became disagreeable to him. So that the Intent of the Legislator was to prevent the greater Inconveniency; and nothing would have been more pleasing to him than to see Husbands keep their Wives, while they gave no just Cause for a Separation. This is what the Spirit or nobler Part of the Law required, tho’ that Part was least studied by the Generality of the Jews. The same is to be said of the Law of the Satisfaction allowed to the Injured, for hindering private Persons from doing themselves Justice by violent Means, to which the Jews were strongly inclined.

[17] The Council of Africa makes use of this Passage, to justify the Resolution of imploring the Assistance of the temporal Power against the Factious; Against whose Fury we may call for such Defence as is not unusual, or disallowed by the Scripture; since the Apostle Paul, as we read in the Book of Acts, secured himself against a Conspiracy of factious Men by a military Force. And St. Augustin frequently urges this Example, as in his Lth. Epistle to Boniface, and in CLIVth. to Publicola, where he says, that If the Soldiers, who guarded St. Paul, had fallen on his factious Enemies, the Apostle would not have thought himself guilty of the Effusion of their Blood. And Epist. CLXIV. he observes, that St. Paul took care to provide himself with a strong Guard for his Defence. Grotius.
The second of these Passages of St. Augustin may be found in the Canon Law, Caus. XXIII. Quaest. V. Can. VIII.

[18] Tributorum autem finis est, &c. The Design of raising Taxes is, &c. Here some Commentators charge our Author with advancing an inconclusive Reason; for, say they, Taxes are raised, not only for supporting War, but also for defraying several other necessary Expences in Time of Peace. This is certain, nor does our Author himself deny it, or say it is the only Design of imposing Taxes. It is sufficient that this is one, and even one of the most considerable Ends proposed. Mr. Barbeyrac therefore translates the Words thus, Mais quel est le but de ces sortes de charges imposées aux Sujets? N’est ce pas, entr’ autres, que les Puissances ayent de quoi fournir aux Depenses, &c. But with what View are such Burthens laid on the Subject? Is it not, among other Considerations, that the Powers may have wherewithal to defray the Expences, &c. To which he adds, that this Version, made conformably to the Author’s Thought, leaves no Room for Criticism; and that Mr. Vander Muelen has done Justice to the Author in this Place.

[19] The Historian puts this Speech in the Mouth of Petilius Cerealis, Hist. Lib. IV. Cap. LXXIV. Num. 2.

[20] Contra Faust. Lib. XXII. Cap. LXXIV. p. 299. Tom. VI. Edit. Eras. Basil. 1528. This Passage (in which our Author writes propter necessaria militi, instead of propter bella necessario militi, as the Words stand in the Edition here specified, which probably he used) is quoted in the Canon Law, Caus. XXIII. Quaest. I. Can. IV. but not exactly in the same Terms, and among some short Extracts of what goes before, or follows.

[21] The same Apostle says elsewhere, There was no Cause of Death in me, that is, I had done nothing worthy of Death. Acts xxviii. 18. Justin Martyr makes this Declaration in his second Apology; addressed to the Emperor, the Senate, and the whole Body of the Roman People, But we desire that such as do not live conformably to the Precepts of JESUS CHRIST, and are only nominal Christians, may be punished, even by your Authority. Grotius.

[22] The Author here alludes to a Passage in Tacitus, relating to Piso, as the learned Gronovius has observed on this Place. Petitam armis Rempublicam; utque reus agi posset, acie victum. Annal. Lib. III. Cap. XIII.

[23] This eleventh Argument occurs both in the first Edition of the Work before us, and in that of 1632, which the Author assures us he had carefully revised. I make this Observation, because it is omitted in several Editions, which was probably the Printer’s Fault, who skipped over two Lines, being misled by the Resemblance of the Words Undecimum and Duodecimum. This Article was wanting in the Edition of 1642, the last published in the Author’s Life Time; but it had been restored before my Edition appeared.

[1] St. Chrysostom explains this Prophecy of the universal Peace established by the Foundation of the Roman Empire at the Time of our Saviour’s Birth. It is foretold, says that Father, not only that this Religion shall be well established, and immoveable, but also that it shall bring much Peace on the Earth; that the several Aristocracies and Monarchies shall be destroyed; and that there shall be one Kingdom raised above all the others, the greatest Part of which shall enjoy Peace in a more perfect Manner than before: For formerly Artificers and Orators bore Arms, and went to the Wars. But since the Coming of CHRIST, that Practice has been abolished, and military Employments are confined to a particular Rank of Men. Discourse on the Divinity of CHRIST. We have exactly the same Explication in Euseb. De Praep. Evang. Lib. I. Cap. X. p. 8. Edit. Rob. Steph. Grotius.

[2] In Reality, as Justin Martyr observes, Christians have no Enemies among themselves to fight with, υ πολεμομεν τος χθος. Which is exactly what Philo the Jew said of the Essenes, You can find among them no Artist who makes Javelins, Darts, Swords, Helmets, Cuirasses, Shields, or any Sort of Armour or Machines. In his Treatise proving every good Man is free, p. 877. Edit. Paris. St. Chrysostom likewise says, If Men loved one another as they ought to do, there would be no capital Punishments. Grotius.

[3] Adversus Gentes, Lib. I. p. 6. Edit. Lugd. Salmas.

[4] It is where he reproaches the Pagans with the Deification of their Conquerors; on which Occasion he reasons thus, If Immortality can be acquired only by shedding Blood, Who will have Gods, if an universal Concord was established in the World? And this certainly might be effected, if Men would lay aside their pernicious and impious Rage, and become innocent and just. Will no one be worthy of Heaven, on this Supposition? Will Virtue lose its Existence, merely because Men are not allowed to give a Loose to their Passions, and destroy one another? Instit. Div. Lib. 1. Cap. XVIII. Num. 16. Edit. Celler.

[5] St. Cyprian explains the Text thus, JESUS CHRIST commands you, not to demand the Restitution of what is taken from you. De Patientia. And St. Irenaeus says, that our Lord here commands us, not to be sorrowful, like Men who cannot bear to be defrauded; but to be chearful, as if we had freely given what is taken from us. And if any Man shall compel thee to go a Mile, go with him two. That is, says the same Father, that you should not follow him like a Slave, but go before him like a Freeman. Lib. IV. Cap. XXVI. Libanius, who had read the Gospels, commends those who did not go to Law for the Recovery of a Coat or a Cloak, Orat. de Custodiâ Reorum. St. Jerom says, that When any Man would sue us, and take away our Coat by litigious Chicanry, the Gospel directs us to grant him our Cloak also. Dialog. I. Adv. Pelag. Tom. II. p. 274. Edit. Basil. Grotius.
The Passage of St. Cyprian, here quoted by our Author, is in his Treatise De Bono Patientiae, p. 216. Edit. Fell. Brem. But it does not fully appear, that that Father designed it as an Explanation of the Words of the Gospel that follow.

[6] Vit. Apol. Tyan. Lib. II. Cap. XV. (XXXIX. Edit. Olear.)

[7] Digest. Lib. IV. Tit. VII. De alienat. judicii, mutandi causâ factâ. Leg. IV. § 1. This Law considered in itself, does not relate to the Action of sacrificing some Part of our Property, rather than engage in a Suit of Law. The Case is widely different; for the Person here supposed to avoid the Multiplication of Law-Suits, is in Possession of the Goods of another Man, who sees the Proprietor disposed to recover them into his own Hands. See Mr. Noodt’s excellent Commentary on the first Part of the Digest. p. 203, 204; for I should be too long in this Place, if I undertook to give the Grounds of this Explication, which supposes an Acquaintance with the Niceties of the Roman Law.

[8] Lib. I. Cap. XLV.

[9] Cicero recommends making large Abatements of our Right, and avoiding Law-Suits and Quarrels, even sometimes to our own Prejudice. De Offic. Lib. II. Cap. XVIII.

[10] Justin Martyr says, that our Saviour’s Design in laying down this Precept, is to engage us to the Practice of Patience and Civility to all Men, and to avoid Passion. Apol. II. Grotius.

[11] The same Father explains this of that Chearfulness with which we ought to divide our Substance with the Indigent; and the Care we ought to take to avoid Ostentation in all our Actions. Apol. II. And in another Place, communicating our Goods to every needy Person. St. Cyprian says, We are to refuse our Alms to no one. Testim. Lib. III. Cap. I. Grotius.

[12] I will give to the Indigent, says Seneca, but so as not to reduce myself to Poverty. De Benef. Lib. II. Cap. XV. St. Chrysostom, on the Passage of the Epistle to the Corinthians here quoted, observes, that GOD requires of every one according to his Abilities only. And to explain himself more fully, he adds, that The Apostle commends the Thessalonians for giving more than they could afford; but does not oblige the Achaians to do the same. Grotius.

[13] Lib. VI. Cap. XV. Num. 9.

[14] Cyropaed. Lib VIII. Cap. II. § 11. Edit. Oxon.

[15] This was not literally a Punishment of Retaliation; for no Criminal was to lose an Eye or a Limb, according to the Law of Moses, which only imposed a fine on such as wounded any one, if Death did not ensue. An Eye for an Eye, a Tooth for a Tooth, are therefore only proverbial Expressions; the Sense of which is, that every Man should be punished by the Judges, according to the Enormity of his Crime. See Mr. Le Clerc on Exod. xxi. 24. and Deut. xix. 21.

[16] This law ordered a strict Retaliation, unless the Criminal could prevail with the Person injured, to come to an Accommodation. See A. Gellius, Noct. Attic. Lib. XX. Cap. I. and Festus on the Word Talio.

[17] See St. Chrysostom in the Place quoted Note 12. Grotius.

[18] De Constantiâ Sapientis Cap. V.

[*] Ibid. Cap. X. Grotius.

[19] In his Peribaea.

[20] These Words are taken from a Piece intitled Fallacia, and are quoted by Nonius Marcellus, page 430. Edit. Paris. Mercer. as well as those of the preceding Note. Gronovius conjectures, that the last Words should be read Nisi circumstant Contumeliae, instead of Nisi constat Contumelia.

[21] Oration against Midias, p. 395. Edit. Gen. This Passage is quoted by the Roman Lawyers, Digest. B. XLVIII. Tit. XIX. De Paenis. Leg. XVI. § 6.

[22] De Constantiâ Sap. Ch. X.

[23] Veterem ferendo injuriam, invites novam. This is one of Publius Syrus’s Sentences, preserved by Aulus Gellius, Noct. Atticae, Lib. XVII. Cap. XIV. It is the 753d in Gruter’s Collection: On which see his Notes, published at Leyden in 1708.

[24] It is a glorious Victory, says St. Chrysostom, to give the Offender more than he requires, and exceed the Bounds of his vicious Desires, by the Greatness of our own Patience. In VII. ad Romanos. Grotius.

[25] The same Father says in another Place, that An Affront either subsists or falls to the Ground, according to the Disposition of those who suffer, not according to the Intention of those who offer it. Orat. I. De Statuis. Grotius.

[26] Mox ut praeberi ora contumelis, &c. Hist. Lib. III. Cap. XXXI. Num. 5. and Os & offere contumeliis. Ibid. Cap. LXXXV. Num. 6. Livy says, Praebere ad contumeliam os. Lib. IV. Cap. XXXV. Num. 10.

[27] Sa. Qui potui meliùs, qui hodie usque os praebui?
Adelph. Act. II. Scen. III. Vers. 7. See also Cicero’s first Epistle to Atticus, page 145. Vol. I. His Oration for Sextus Roscius, Ch. XLIX. page 205. And against Verres III. page 32. Ed. Graevii; where the same Expression is used in the same Sense.

[28] The Proselytes were placed on the Level with the Hebrews in this Particular, and the Laws which prohibited doing an Injury to another, were also extended to those uncircumcised Inhabitants, of whom we have spoken, Chap. I. § 16. This is acknowledged by the Talmudists. Grotius.

[29] See § 2. of this Chapter, Num. 3. at the End.

[30] Tertullian says, The first Degree of Goodness is that exercised toward Relations: The second, That employed on Strangers. Against Marcion. B. IV. Chap. XVI. St. Jerom having acknowledged himself obliged by the Divine Precept to love his Enemies, and pray for his Persecutors; asks, Whether it is just that he should love them like his near Relations? And that no Difference should be made between an Enemy and a bosom Friend? Against Pelag. Dial. I. Vol. II. page 274. Edit. Basil. Grotius.

[31] These are Seneca’s Words, Nam tam omnibus ignoscere Crudelitas est quam nulli. De Clementiâ. Lib. I. Cap. VII. St. Chrysostom, speaking of human Punishments, says, These Things are not done by Men out of Cruelty, but out of Humanity. In I. ad Cor. iii. 12, &c. And St. Augustin, to the same Purpose, As there is sometimes a punishing Compassion; so there is also a tender Cruelty. Ep. LIV. to Macedonius. The Emperors Valentinian, Theodosius, and Arcadius, in the third Law of the Theodosian Code, De defensoribus civitatum, speak thus, Let all Protections be removed, which by favouring the Guilty, and assisting the Criminal, encourage the Growth of Wickedness. (This Law occurs in almost the same Terms, under the same Title, in the Justinian Code, Leg. VI.) Totila declared, that To commit a Crime, and screen the Guilty from Punishment, were Actions equally culpable. Procop. Gothic. Lib. III. Cap. VIII.

[32] See St. Cyril on this Subject, in his fifth Book against Julian, Page 173, &c. Edit. Spanheim. Grotius.

[33] See likewise Matt. xxi. 41. Luke xix. 12, 14, 27. St. Chrysostom, having enumerated the Calamities which befel Jerusalem, adds, And to shew you that CHRIST himself did all this, hear him foretelling it, both in Parables, and in clear and express Terms. In Romans xiv. See also his second Oration against the Jews, where he has something to the same Purpose.

[34] Shall I kill? Shall I cut off a Limb? For there is a Spirit of Lenity, and a Spirit of Severity. Chrysost. 1 Cor. iv. 21. See likewise St. Augustin, De Sermonibus Domini in Monte. Lib. I. and others quoted by Gratian. Cause XXIII. Quest. VIII. Grotius.

[35] The Vulgate reads defendentes in this Place; but that Word is frequently used by Christian Writers for revenging. Tertullian, in his Treatise Of Patience, Chap. X. against Marcion, B. II. Chap. XVIII. The Passage of St. Paul, here under Consideration, is well explained by St. Augustin in the following Manner: We are therefore forbidden to resist Evil, that we may not be delighted with Revenge, which feeds the Mind with the Damage sustained by others. Ep. CLIV. Grotius.

[36] See Levit. xix. 8. and Deut. xxxii. 35. where we have the Sense of the Words.

[37] The present Distinction of Chapters is attributed to Hugo de Sancto Charo, a Cardinal, who lived in the thirteenth Century; or to others not much earlier. Before that Time there was a much more antient Division, made towards the Close of the fourth Age. See Dr. Mills’s Prolegomena, Num. 905, &c. Edit. Kuster. According to that, the twelfth, thirteenth, and fourteenth Chapters in our Editions make but one; as may be seen in the said Doctor’s beautiful Edition.

[38] St. Chrysostom is of Opinion, that by carnal Weapons in this Place, are understood Riches, Glory, Power, Eloquence, Address, Intrigue, Flattery, and Hypocrisy. Grotius.

[39]

Divitis hoc vitium est auri; nec bella fuerunt,
Faginus adstabat quum scyphus ante dapes.

Lib. I. Eleg. XI. v. 7, 8. Edit. Brockhuys.

[40] See, for Example, B. VII. p. 300. Edit. Paris. B. XIV. p. 656. and B. XV. p. 713.

[41] Philo the Jew makes the same Remark, in his Treatise Of a contemplative Life, p. 892. Edit. Paris. upon quoting that Verse of Homer, Iliad. B. XIII. v. 6.

Γλακτοθάγων, βίωντε, δικαιοτάτων νθωπών.

Men who live on Milk, and in great Poverty; but are remarkable for their Probity. Justin, having told us that the Scythians made a Profession of Despising Gold and Silver as much as other Men idolized them, observes, that The Innocence of their Morals and Freedom from Avarice proceeds from this excellent Disposition; for, says he, where the Use of Riches is known, there Covetousness is found. B. II. Ch. II. Num. 8, &c. Nicephorus Gregoras says something like this of the same People, B. II. The Passage is worth reading. Plutarch, in his Life of Alexander the Great, p. 698. Vol. I. Edit. Wechel. introduces Taxiles, an Indian King, speaking thus to that Prince, What Necessity is there of Fighting and Wars between us, if you neither come to deprive us of our Water, nor necessary Food; for which only reasonable Men are obliged to take Arms? Diogenes the Philosopher said, that Robbers and Warriors were not to be found among such as lived on Water-gruel. Porphyry looks on a simple and cheap Diet, as what contributes very much towards establishing Piety, and making it common among Men. Of Abstinence from Animal Food, B. II. p. 144. Edit. Lugd. 1620. Grotius.
In the Verse quoted from Homer, at the Beginning of this Note, our Author, following the common Explanation, takes βίων for an Epithet; whereas it is the proper Name of some of the antient Scythians, as the Author of the short Scholia observes, tho’ he has given Occasion to this false Interpretation. Upon consulting Strabo’s Geography, B. VII. p. 296, 300. Edit. Paris. Arrian’s Account of Alexander’s Expedition. B. IV. Ch. I. Q. Curtius, B. VII. Chap. VI. Num. 11. And Stephanus, De Urbibus, under the Word βιοι, it will appear, that the Poet here speaks of the Abians, as a particular People; and it is surprising, that Madam Dacier is the first Translator of Homer, who hath not made a Mistake in this Place; for not only Wetstein’s small Edition, but also Mr. Barnes’s large and beautiful Edition, are here conformable to those which had appeared before. In the latter the Printer has omitted the whole Greek Scholium on the sixth Verse, which the Editor has not observed, tho’ he assures the Publick, he has placed it in better Order than it ever was in before. The Saying of Diogenes, which our Author produces, without telling us where he found it, may be seen in Porphyry, B. I. p. 94. I am the more willing to make this Observation, because this Saying is one of those which have escaped the Enquiries, not only of Mr. Stanley, in his Philosophical History, written in English; but also those of the late Mr. Olearius, who when he translated that excellent Piece into Latin, undertook to make the necessary Supplements to it.

[42] Pharsal. Lib. IV. v. 473, &c.

[43] Page 1049. Vol. II. Edit. Wech. This is a very just Observation, but little regarded. It will not be improper to confirm it by some other Passages, as beautiful as those already quoted. The Philosopher Athenaeus, in a Greek Epigram, Mortals, why take you so much Pains for evil Things, and engage in Quarrels and Wars, at the Instigation of an insatiable Desire of Gain?

νθώπι, μοχθετε τι χείονα, κα δι κέδος

πληστον νεικν χετε κα πολέμον

Diogen. Laert. B. X. §12. Edit. Amst.

Fabianus Papirius, an antient Rhetorician, writes thus, We see Armies drawn up in Battle Array, where often fellow Citizens and Relations are ready to engage one with another: The Hills on both Sides are covered with Cavalry, and soon after the whole Country is covered with dead Bodies, or Plunderers. Should it be asked, What forces Man to commit this Crime on Man? Since even the wild Beasts do not make War one with another; and if they did, Would the same Conduct become Man, that peaceable Animal, and most nearly resembling the Divinity? What excessive Rage actuates you, who are one Family, and of the same Blood? Or what Fury animates you to shed one another’s Blood? By what Chance, or by what Fatality, has so pernicious a Practice been introduced among Mankind? Must Parricide be committed, with a View of making splendid Entertainments, and adorning Palaces with Gold? No Doubt those Things must be great, and worthy of Commendation, which induce us to admire our sumptuous Tables, and rich Cielings, rather than retain our Innocence, and live in the open Air. Ought we not to desire to enslave the whole World, that we may have it in our Power to indulge our Appetites and Passions without Restraint? In fine, Why are pernicious Riches sought for with so much Eagerness, but with a Design of leaving them to our Children? Seneca, Controvers. B. II. Controv. IX. p. 153. Edit. Elziv. Doth the Love of Riches, of a Woman, of Glory, or any Thing else that affords Pleasure, prove the Cause of small and common Evils? Doth not this divide the nearest Relations, and convert their natural Affection into irreconcileable Hatred? Is it not for this that large and populous Countries are reduced to so many Desarts, by domestick Seditions? Is it not this that daily fills both Sea and Land with new Calamities, by Means of Fleets and Armies? The Wars of the Grecians and Barbarians, either with one another, or among themselves, which are described by the Tragick Writers, are all derived from one Source, the Desire of Riches, Glory, or Pleasure. Philo the Jew, on the Decalogue, p. 765. Edit. Paris. Pliny observes, that The Magnificence of Riches has a Tendency to promote enormous Crimes, Destruction, and War. Hist. Natural Lib. II. Cap. LXIII. The Philosopher Diogenes says, that Tyranny, the Ruin of Cities, foreign and intestine Wars, are not owing to a Desire of purchasing a simple Diet of Herbs and Fruit; but to a Fondness for exquisite Food and Dainties. St. Jerome, Adv. Jovinian. B. II p. 77. Edit. Basil. St. Chrysostum observes, that If mutual Love was maintained among all Mankind, no one would injure another; Murthers, Quarrels, Wars, Seditions, Rapines, insatiable Desires, and all other Vices, would be banished out of the World. In 1 Cor. xiii. 3. and in another Place, he asks, Are not they (the Rich) the Authors of Seditions, Wars, the Destruction of Cities, Slavery, Captivity, Murder, and an Infinity of other Calamities? Orat. ad Patrem fidelem.
Claudian says, If Men would be content with the little Nature requires, we should not hear the Sound of the Trumpet, nor be exposed to Sieges. In Rufin. Lib. I. v. 206, &c.
Agathias maintains, that The Minds of Men, wholly addicted to Injustice, and insatiable Desires, fill the World with War and Confusion. Histor. Lib. I. Cap. I. I shall conclude all the fine Passages I have quoted, with a Saying of Polybius, When one knows how to be contented with the Necessaries of Life, one needs no other Philosophy or Master. Apud Suidam, voc. υτάκεια.

[44] Lib. II. Cap. II. Num. 2, &c.

[45] De Finib. Bon. & Mal. Lib. I. Cap. XIII.

[46] Dissert. XIII. p. 142. Edit. Davis.

[47] Cap. XIII. p. 142.

[48] In the next Chapter, § 3.

[1] Πς τ δικαίους, κα τεταγμένους πολέμους, εποτε δέοι, γίγνεσθαι ν νθώποις. Our Author quotes only these Words, without specifying the Place whence he took them.

[2] Bonum esse, quum puniuntur Nocentes, nemo negat. Thus our Author cites the Passage, but does not tell us in what Treatise it is to be found. It is in the nineteenth Chapter of his Book DeSpectaculis, where it is delivered in a more energetical Manner, Bonum est, quum puniuntur nocentes. Qui hoc nisi Nocens, negabit? It is good to punish the Guilty. Who, but a Criminal, will deny this?

[3] The same Father says elsewhere, that, according to St. Paul, Human Justice does not bear the Sword in vain; and the Severity of Punishment is advantageous to Mankind. De Animâ. Cap. XXXIII. He addresses himself to the Proconsul Scapula, in the following Terms, We do not attempt to terrify you, nor are we afraid of you. But I wish we could save all Men, by exhorting them not to fight against GOD. You may both exercise your Jurisdiction, and be mindful of the Duties of Humanity; even on this Consideration, that you yourselves are under the Power of the Sword. Cap. IV. Grotius.

[4] De Idololatria, Cap. XIX.

[5] Cap. XI.

[6] Tertullian applies this Distinction to Marriage, in his Treatise Of Monogamy, and in his Exhortation to Chastity. Grotius.

[7] Tertullian says, Such Persons are not received into the Church, as exercise Professions not allowed of by the Law of GOD. De Idololatria, Cap. V. The primitive Christians admitted neither Prostitutes, Stage-Players, nor Persons of any other infamous Professions, to the Sacraments of the Church, till they had renounced such criminal Engagements. As we learn from St. Augustin, De Fide & Operib. Chap. XVIII. See an Example of this Discipline, in regard to a Comedian, in St. Cyprian, Epist. LXI. (2d Edit. Oxon.) in regard to the Gladiators, infamous Promoters of Debauchery, and such as traded in Cattle for Sacrifices; in Tertullian, De Idol. Cap. XI. of a Charioteer in the publick Games, in St. Augustin. Grotius.

[8] De Coronâ militis, Cap. I.

[9] Alexander, the Son of Theodore, deputed from Hyrcanus, High Priest, and Prince of the Jewish Nation, has declared to me, that his Countrymen cannot engage in the Army; because they are not allowed to bear Arms or March on the Sabbath Day, and will not easily be able to observe the Distinction of Meats, and other Customs belonging to that People. Antiq. Jud. Lib. XIV. Cap. XVII. pag. 488. Edit. Leips.

[10] This Account immediately follows the Passage quoted in the last Note.

[11] Antiq. Jud. XVIII. Cap. V.

[12] This is what Josephus says of Alexander the Great, who proposed their serving him on these Conditions. Antiq. Jud. Lib. XI. Cap. ult.

[13] De Idolol. Cap. XIX.

[14] De Coronâ Militi, Cap. XI.

[15] Ibid.

[16] Legat. pro Christian. Cap. I. p. 10. Ed. Oxon. 1706.

[17] De Gubernat. Der. Lib III. p. 74. Edit. Paris. 1645. St. Basil the Great pretends that going to Law is expresly forbidden by the Gospel. Homil. de Legend. Grecor. Lib. §7. Edit. Oxon. 1694.

[18] Without entering into Theological Disputes, I shall only make some Remarks, which, in my Opinion, will be sufficient for shewing how little Grounds there are for what has been formerly and stillis said in many Places, concerning those pretended Evangelical Counsels; and at the same Time discovering what gave Occasion to the Distinction between them and Precepts. First, then, I say, if there were really any divine Counsels, properly so called, they must necessarily relate to such things as on one hand are always commendable, excellent, and in their own Nature agreeable to GOD: And on the other, left entirely to the Liberty of every Man; so that they can in no Case be obligatory. Now, upon a careful Examination of the very Examples, here alledged by our Author from the ancient Fathers, which are the most considerable of those made to regard the Evangelical Counsels, it will appear that they turn on things, which either are neither good, nor evil in their own Nature, or are really obligatory in relation to certain Persons, and in certain Circumstances. 1. Let us begin with second Marriages and Celibacy in general, which our Author elsewhere ranks in this Class. B. III. Chap. IV. §. 2. numb. 1. It is certain that whether a Person marries or lives single, he does neither Good nor Evil in that, considering the thing in itself. As the married State does not necessarily engage to Vice, so neither is an unmarried Life an infallible Means for practising Virtue.
A Man may be good or bad in a married State; as he may likewise be either in Celibacy. It is but too evident from Experience that those, who have made a Vow of Celibacy, or laid themselves under the same Tie in regard to a second Marriage, have generally fallen into one of these two Inconveniences, viz. either they have not lived chastly, or have not proved less subject to other Passions and Vices very unworthy of a Christian, such as Anger, Covetousness, Hatred, Pride, the Spirit of Domination, Sloth, &c. even though a Man’s Constitution will easily allow him to for ego Marriage, if while he lives in Celibacy, he does not for that Reason become more useful to Society, and more capable of discharging his Duty, the Matter is then entirely indifferent. But if one has good Reason to believe he shall be able to employ his Time better, and do the Publick more Service in a single Life (which depends on the Condition and Circumstances of each Person, of which they must judge for themselves) he is then under an indispensible Obligation not to marry, supposing he believes himself entirely secure from Temptations of Impurity; or not to marry a second Time, especially when he may thus make a better Provision for his Family. 2. In regard to forbearing Law Suits, and chusing rather to lose one’s Property, than sue the Person, who has taken it from us or detains it unjustly; it is a general Maxim, that we are obliged to make some Abatement in our Right, whenever that can bed one without great Prejudice to ourselves, or occasioning any other Inconvenience. The View of promoting Peace, and Prudence equally require such a Cession. So that Law-Suits bring commonly so many pernicious Sources of Hatred, Animosities, Divisions, Discontent, Perplexities, Expences, &c. we are to avoid them as much as possible, and expose ourselves to a slight Loss rather than engage in all unhappy Consequences, which attend the pursuit of our most just Rights. This is not a Counsel, but a real Precept, both the Gospel, and the Law of Nature, especially when certain particular Circumstances demand such a Moderation. This was the Case in the Infancy of Christianity, when, to avoid giving an ill Opinion of that Religion, and its Votaries, it was highly improper for Christians to go to Law in the Courts of Pagan Judges. See what our Author says, Paragraph 8. of this Chapter, num. 4. But, if no such Inconvenience to ourselves or others is to be apprehended, and some considerable Interest is at Stake, it is so far from being a very commendable Action, quietly to permit our Property to be taken away, or detain’d, that it would even be a bad one; for thus ill-designing Men would be encouraged to do evil; and such a Moderation would be the more blameable, as it might add to the Inconveniences of one’s self or one’s Friends. So that Patience in the Case before us, is either useless or prejudicial; and then it cannot deserve Commendation; or it is a real Duty. Almost the same may be said of declining War. Thirdly, when the primitive Christians refused the Edileship or Praetorship, it was, according to Gronovius, because those who accepted of these Posts were obliged to exhibit publick Shews for the Entertainment of the People, in which there was some Mixture of Idolatry. But the extravagant Ideas they had of several other things, give us room to believe, that many of the antient Doctors of the Church condem’d all in general, who sought for or accepted of Honours and Dignities. In regard to the thing its self, the Honours in question are either vain Titles and frivolous Distinctions, which suppose no Merit in the Persons who receive them, and have no Tendency to promote the Good of Society: Or it is requisite that they, on whom they are conferred, should be possess’d of certain commendable Talents and Qualities, for the worthy Discharge of the Functions annexed to them. There is no great Virtue in neglecting or rejecting the former: And as there is great Danger they will inspire us with Sentiments of Pride, even that ought to be a Reason for avoiding them. In regard to the latter, either the Candidate is Possess’d of the Qualifications requisite for acting in a publick Character, or he is not. If not, or even if there are other Candidates who are possess’d of them, in a much greater Degree, he commits a Fault in pursuing, or even barely accepting of the Dignities in Question, for which a Man can never be too well qualified. But if one is convinced not only in one’s own Opinion, in which one may deceive himself; but also by the impartial Judgment of understanding Persons, that one is much more capable of acquitting one’s self of an honourable Employ, to which one is called, than others who aspire at them, it would be either Sloth or false Modesty to decline it, and it could not be reasonably done, but when the Person is engaged so to do by some stronger Obligation, or knows he has great Reason to apprehend the Influence of Temptations to Vanity, which might prompt him to frequent Abuses of the Power and Privileges with which he would be invested. Fourthly, Lactantius does not allow a Christian to trade by Sea. For why should he go to Sea, says that Father, or what should be seek for in a foreign Country, when his own furnishes him with all Necessaries? Lib. V. Cap. XVII. But the Apostle St. James manifestly supposes it lawful to go from Coast to Coast for the sake of Traffick and Gain. Chap. iv. v. 13, 14. The thing therefore is in itself indifferent; so that as we may Trade either innocently, or in a manner contrary to some Virtue; to abstain from trading, unless it be with a View of avoiding an insatiable Avidity of Gain, to which a Man finds himself disposed, or some other dangerous Temptation, has nothing in it deserving Commendation. In this Case it is no longer a pretended Counsel of extraordinary Perfection, but an indispensible Obligation incumbent on every Christian. Fifthly, taking an Oath is sometimes indispensibly necessary, as when things which regard the Glory GOD, or the Good of Mankind are concerned; or when the Magistrate for just Reasons requires it. As to these Cases, where our Interest only is concerned, and where the Distinction of Counsels and Precepts might take Place most, we are to judge of them by the Principles already laid down in regard to Law-Suits. Sixthly, to all these Examples given by Grotius, let us add one alledged by Dr. Hammond, who, out of respect to Ecclesiastical Antiquity, had likewise adopted the Distinction of Counsels and Precepts, as appear from his long Note on Colos. ii. 23. It is taken from St. Paul’s Generosity, in preaching the Gospel without receiving any Salary. 1 Cor. ix. 15. 18. But on a close Examination of the Matter, we shall find nothing in it relating to a Counsel properly so call’d. Though the Apostle glories in not having made use of his Power of demanding a Salary, and expects to be rewarded for his Conduct, it does not thence follow that the said Act was entirely free in regard to him, and had no relation to his Duty. He himself clearly gives us to understand the contrary, when he says, that if he had not made use of his Power, it was that the Gospel might be without Charge. In Reality, it was a Matter of the last Importance, that the first Preachers of the Gospel should carefully avoid all that could give the least Suspicion of their publishing the Christian Religion for their own Profit and Advantage: And it may be said in general that all who undertake to instruct others in that holy Religion, can never appear too disinterested, or be too humble. Thus, though the Persons to whom the Apostles preached, could with no shew of Reason require them to do it without some Salary; and that, strictly speaking, St. Paul was not obliged to do it; yet as soon as he was persuaded his Ministry would by that Means prove more efficacious (which probably he had room to conclude from some particular Reason unknown to us; and he seems elsewhere to insinuate that he had one, 2 Cor. xi. 9, 10, 11, 12, 13.) he lay under a real Obligation so to do; an Obligation founded on the general Engagement, which requires every Man to seek and employ all Means necessary for acquitting himself of an important Charge, in the best manner he is able. However, as in such Cases Persons make an Abatement of their Right in Favour of those with whom they have to do; and therefore a greater Stock of Virtue is requisite for resolving on such a Sacrifice, than barely refusing to take what others have in Rigour a Right to demand, we have likewise more Reason to congratulate ourselves on so happy a Disposition, and may expect from the Divine Goodness a greater Recompence. Besides, the Apostle here considers the Disinterestedness, for which he applauds himself, as a Duty, not formally enjoin’d him by particular Order from Heaven, or at least not necessarily join’d with the Exercise of the Evangelical Ministry, in Opposition to the Necessity imposed on him of preaching the Gospel, v. 16. for which he had received an express Command from our Lord JESUS CHRIST, Acts xxii. 14, 15. See what Grotius himself has said on this Point, in his Notes on Luke xvii. 10. And this leads us to what gave Occasion to this false Distinction of Precepts and Counsels, which comes now to be consider’d. The Apostles made use of the Word Counsel, when speaking to Christians of the Conduct they ought to observe in certain Circumstances, in regard to things either indifferent in themselves, or concerning which they had neither any particular Order from JESUS CHRIST, nor any general Rule in the Gospel, imposing an evident and indispensible Obligation of acting or not acting in such or such a manner. Thus St. Paul, 1 Cor. vii. treating of Marriage, and considering the Afflictions and Persecutions, to which Christians were then exposed, says, that in Reality such as are not favour’d with the Gift of Continence might, and even ought to engage in that State, and that married Persons ought not to refuse one another the Marriage Debt, unless it be done by mutual Consent; nor separate, even though one of the Parties were not a Christian, But that he had rather those who had never been married, and those whose conjugal Tie had been dissolved by the Death of one or the other, should remain as they are. He declares, however, that he has no Commandment of the Lord, concerning that Matter; but that he gives his Judgment, or Counsel, as one who hath obtain’d Mercy of the Lord to be faithful, and who hath the Spirit of the Lord, v. 25. 40. that is as a good Interpreter of the Will of GOD, in determining what was to be done in regard to the Circumstances of those Times. In which, however, he could not avoid laying down some general Rules, which each Person was to apply for his own Use and Direction, according to his State and Condition, v. 17. so that as he was obliged to leave the Matter to each Man’s Judgment and Conscience, he therefore calls his Exhortations bare Counsels, or Advice. He does the same, when he admonishes the Corinthians to practise Liberality to the Poor, the Exercise of which Virtue ought to be voluntary and proportion’d to each Man’s Abilities, 2 Cor. viii. 10. Hence some have, without sufficient Grounds, taken Occasion to imagine there are some things, which, though of an excellent Nature, and in themselves highly agreeable to GOD, are left to every one’s Liberty, so that there is no evil in the neglect of them, nor any Reason to be apprehensive of Punishment for such Omission; but if any Man forms the noble Design of aspiring to them, he arises to an extraordinary degree of Perfection, and performs such Acts of Virtue as merit a singular Reward. Another Reason, not unlike this, which may have given Birth to the Distinction under Consideration, is, that as GOD requires of Men more extensive Duties and in greater Number, in Proportion to their Knowledge and Assistance on the Practice of them; these are certain virtuous Acts, and even certain Virtues, not expected from great Numbers, because there are but few in Circumstances will oblige them to such Practices. It has been particularly observed that GOD requires greater Sanctity from Christians, than he demanded of the antient Jews. But it ought to be consider’d that, if any one, under the Jewish Dispensation, had by Force of Meditation and Reflection, acquired as exact and extensive a Knowledge of his Duties, as that to be found in the Gospel, which might have been done by a careful Examination of the Principles, dispersed through the Writings of Moses and the other Prophets; such a Jew would then have been obliged to as regular and holy a Conduct, as that of true Christians. Lastly, it is to be observed that the Distinction of Counsels and Precepts, is so far from having any Tendency toward making Men virtuous, that in certain Cases, it may divert them from the Practice of Virtue. As Men are fond of the Wonderful, and of every thing that flatters their Vanity; they are in great Danger of being dazzled with the pompous Ideas of an imaginary Perfection, which raises them above the common level; and, while in pursuit of such Chimeras, neglecting several Branches of their real Duty, the Practice of which their Passions sometimes render more difficult, than the Sacrifice they make by abstaining from Things permitted. It is even possible for Man, under Pretence of extraordinary Sanctity, to deceive himself grosly in regard to plain and common Duties, and imagine himself excused the Practice of them, to make himself Amends for the Violence committed on his Inclinations; by this Abstinence from certain Things. Experience shews the Truth of this Reflection in such as make Vows of Celibacy and Poverty. See Mr. Le Clerc’s Addition to Dr. Hammond’s Note, already cited; as also his Notes on the second Epistle of Sulpicius Severus. Edit. Leipsic. 1709.

[19] The fourth Council of Carthage forbids Bishops to go to Law for temporal Concerns, even though actually attacked. See St. Ambrose, de Offic. Lib. II. Cap. XXI. and Gregory the Great, Lib. II. Ind. XI. Epist. LVIII. Grotius.

[20] See our Author’s Notes on Mat. v. 34. and Tillotson’s XXII. Sermon.

[21] In Rom. i. 9. 2 Cor. i. 18. 23. Gal. i. 20. Philip. i. 8. 1 Thes. ii. 5.

[22] Apolog. Cap. XLVI.

[23] For why should he (the just Man) go to Sea, or what should he look for in a foreign Country, who is supplied with all he wants in his own? Why should he go to War, and engage in other Men’s mad Quarrels, whose Soul is always at Peace with all the World? Instit. Divin. Lib. V. Cap. XVII. num. 12. Edit. Cellar.

[1] Our Author’s Thoughts were probably on what that antient Doctor says in his Stromata, Lib. I. Cap. XXVI, XXVII. p. 420. and of Edit. Oxon. where we meet with the Sense, but not expressed in the same Words.

[2] Paedag. Lib. II. Cap. XI. p. 240.

[3] Lib. VII. Cap. III.

[4] Lib. VIII. Cap. XXXII.

[5] Apolog. Cap. XLII.

[6] Ibid. Cap. XXXVII.

[7] Cap. V. Father Pagi, in his Criticisms on Baronius, Tom. I. has shewn that this Story has a great Mixture of Fables. But it is sufficient for our Author’s Purpose, that Marcus Aurelius had Christians in his Army; a Fact which can never be disputed, and which has given Occasion to all the Wonders invented concerning the thundering Legion, as it is called by Eusebius, and others.

[8] Cap. I.

[9] Add to all these a Soldier, baptized by Cornelius, mentioned by Ado, in his Martyrology. Grotius.

[10] Epist. XXXIX. Edit. Oxon. (34. Pamel.)

[11] Capitalibus suppliciis. Thus the Words stand in all Editions; but what follows makes it evident that the Author design’d to have said Capitalibus Judiciis, at Trials for Life. The Question is about acting as a Judge, not as a bare Spectator of the capital Executions, as Tesmar ridiculously explains this Passage, who quotes Quintilian and Seneca. It appears from Tertullian, that the Obligation of being present at such Trials, was one of the Reasons why the primitive Christians made a Difficulty of bearing Arms; and that Father uses the very Terms which I have placed here, pursuant to my Author’s Meaning. De Idol. Cap. XIX. Grotius has before quoted what follows, and immediately precedes that Sentence, to which he probably alludes.

[12] By this Senatus Consultum, or Decree of the Senate, it was ordered, that if a Master happened to be assassinated in his own House, all the Slaves under the same Roof should be put to Death; even tho’ no Proof appeared of their being concerned in the Murther, or having heard any Thing when the Blow was given. We have an Example of the Case in Tacitus, Annal. Lib. XIV. Cap. XLII, &c. The Emperor Adrian, as our Author has observed in a Note, softened the Rigour of that Decree, by ordering that only they should be racked, who were near enough to the Place, where the Master was killed, to hear some Noise. Spartian, Vita Hadriani, Cap. XVIII. Our Author says likewise, in the same Note, we may add to the too rigorous Laws of the Romans, that which forbids admitting the Evidence of a Slave, but when he persisted in it on the Rack. See Cod. Lib. VI. Tit. I. De servis fugitivis, &c. Leg. IV. and Mr. Noodt’s Probabilia Juris, Lib. I. Cap. XIII.

[13] If any one is guilty of the Death of his Parent, or Son, or any other Relation, which falls under the Denomination of Parricide, —Let him be sewed up in a Sack, with a Dog, a Cock, a Viper, and an Ape— and thrown either into the neighbouring Sea, or a River, Lib. IX. Tit. XVII. De his qui parentes aut liberos occiderunt. Leg. ult. It is well known this was the antient Manner of punishing Parricides among the Romans; but the Use of it was abolished. Such Criminals were burnt, or obliged to engage with wild Beasts, for the Entertainment of the Publick. See the Commentators on the Institutes, Lib. IV. Tit. XVIII. De publicis Judiciis, § 6. and the Receptae Sententiae of Paul the Lawyer. Lib. V. Tit. XXIV. with Mr. Schulthig’s Notes.

[14] He used to say, The distempered and rotten Limb must be cut off, that it may not communicate the Infection to those that are sound; but not a sound one, or one that began to heal. Zon. Vit. Constantini, Lib. IV. Cap. XXXI. And this his Historian represents as the Result of his Tenderness for such as reformed their Lives. As the Christians complained of that Prince’s Excess of Clemency, the Danes did the same in relation to their King Harold, as we learn from Saxo the Grammarian. Northern Hist. Lib. XI. p. 193, 194. Edit. Wechel. 1576. Grotius.

[15] See the late Mr. Cuper’s Notes on Lactantius, De Mortibus Persecutorum, Cap. XLIV.

[16] Viget. De Re Militari, Lib. II. Cap. V. Edit. Plantin. Scriver.

[17] We find a like Saying of St. Augustin, inserted in the Canon Law, Caus. XXIII. Quaest. I. Can. V. as taken from his Book, De verbis Domini, Tract or Sermon XIX. And our Author quotes the same Words elsewhere, under the Name of that Father, B. II. Chap. XXV. § 9.

[18] De Offic. Lib. I. Cap. XXVII. This Passage occurs also in the Canon Law already quoted; where we have several of the like Thoughts of other Fathers of the Church.

[19] St. Augustin says, It is a Priest’s Duty to intercede for Criminals. Several Instances of such Acts of Goodness may be seen in that Father’s Epistles. Grotius.
The very Passage, here quoted by our Author, occurs in that Father’s fifty-fourth Epistle, addressed to Macedonius, a Judge, You ask me, says he, Why we say it is a Duty annexed to our sacerdotal Character to intercede for Criminals? &c. This is followed by his Reply to that Magistrate’s Objections.

[20] See St. Chrysostom, Homil. XVI. De Statuis. The Council of Orleans, Cap. III. and the Laws of the Wisigoths, Lib. VI. Tit. V. 16. Lib. IX. Tit. II. Cap. III. Grotius.

[21] As soon as the first Day of the Paschal Feast is come, let no Man remain in Prison; let every ones Chains be loosed. Cod. Lib. I. Tit. IV. De Episcopali audentiâ, &c. Leg. III. This, however, took Place only in regard to some certain Crimes, as appears from the rest of the Law. See Observationes divini & humani juris, printed at Paris in 1564. p. 43, &c. They were written by Barnabas Brisson, a President famous for his great Learning. Besides, the Custom under Consideration had been before received by the Jews, as any one may perceive from what he reads in the Gospels. Our Author, in his Notes on Matt. xxvii. 15. conjectures that this Privilege was granted them by Augustus.

[22] These Exceptions may be seen in Cassiodore, Var. Lib. XI. Cap. XL. See also the Decretals, Lib. III. Tit. XLIX. De immunitate Ecclesiarum, Caemeterii, &c. Cap. VI. Grotius.

[23] Simeon le Maitre expresses the Sense of this Canon thus, Let such as (having at first resisted the Violence used on them) have afterwards yielded to Iniquity, and engaged in the Army again, be excluded from Communion for ten Years. Balsamon, Zonaras, and Rufinus, Lib. X. Cap. VI. give this Canon the same Sense. Grotius.

[24] Tertullian, in his Treatise Of Idolatry, Cap. I. calls it, The most enormous Crime which Man can commit: The Heighth of Guilt. And St. Cyprian, gravissimum & extremum Delictum. Ep. XI. (XV. Edit. Oxon.) Grotius.

[25] In the Life of Constantine, Lib. I. Cap. LIV.

[26] We have likewise the Authority of Sulpicius Severus for this Fact. Licinius, being engaged in disputing the Empire with Constantine, ordered his Soldiers to offer Sacrifice, and dismissed those from the Service who refused to comply. Hist. Sacr. Lib. II. Cap. XXXIII. Num. 2. Edit. Vorst. Valentinian, who was afterwards Emperor, had for the same Reason been deprived of a military Employment, under Julian; as we learn from Rufinus, Philostorgius, Theodore, Sozomen, &c. Victor of Utica says somewhat like this, when he tells us, that under King Huneric, several quitted the Service, because they could not continue in it without declaring for Arianism. Grotius.

[27] See Sozomen, Hist. Lib. V. Cap. XVII.

[28] Eusebius, in the Life of Constantine, Lib. II. Cap. XXXIII.

[29] Epist. XC. (al. XCII.) to Rusticus, a Bishop, Cap. X. We find this Passage in the Canon Law, Caus. XXXIII. Quaest. III. De Paenitentiâ Dist. V. Can. III. And in the Capitularies of Charlemagne, Lib. VI. Cap. CCLXIV. Edit. Paris. 1640.

[30] Pope Leo, in the same Epistle to Rusticus, says, that He who obtains Pardon for doing Things unlawful, must abstain from several that are in their own Nature lawful. We have almost the same Thought, in the Letter written by the Bishops to Lewis King of Germany, Every Man ought to renounce the Use of what is in itself allowable, in Proportion to the Liberty he has allowed himself in unlawful Acts. And in the Capitularies of Charles the Bald, Let every one endeavour to enrich his Soul with good Works, of greater Value, as it has been more impoverished by Crimes. Grotius.

[31] Eusebius observes, that the Life of a Christian is of two Sorts; the one perfect, ντελς, the other short of Perfection. He adds, that such as lead the latter, ought, among other Things, to represent their Duty to those, who serve in a just War. Demonstr. Evang. Lib. I. Cap. VIII. Grotius.

[32] Let not Ecclesiasticks or Monks engage in temporal Affairs. Canon of the Council of Mentz, quoted in the Decretals, Lib. III. Tit. L. Cap. I. Grotius.

[33] See St. Jerom’s Epistle to Nepotian. Grotius. The Canon here quoted, is not the VI. but the VII. as Ziegler observes on this Place.

[34] Whoever has attempted to divert the Priests and Ministers of the Church, from the Service of the Altar, deserves not even to be mentioned in the Priest’s Prayers at the Altar: For which Reason, Victor, who, in Opposition to the Regulation lately made in a Council, dared appoint a Priest to the Charge of a Guardian, is not to be allowed any Oblation among you, for the Repose of his Soul; (pro Dormitione ejus) nor is any Prayer to be offered in the Church in his Behalf. Lib. I. Epist. IX. (Edit. Oxon. Ep. I.) Addressed to the Priests, Deacons, and Laity at Furni. See also Justinian’s Code, Lib. I. Tit. III. De Episcopis & Clericis, &c. Leg. LII. Grotius.
The Passage of St. Cyprian, to which our Author barely refers, occurs in the Canon Law, Distinct. LXXXVIII. Can. XIV. and Caus. XXI. Quaest. III. Can. IV. From which it appears, that, according to that Father, the deceased deserves some Kind of Punishment even after Death, for having dared to name a Priest Guardian; because he, on that Account, forbids Oblations, or publick Prayers to be offered in his Name, on the Anniversary of his Death, according to the Custom then introduced, which afterwards paved the Way to Superstition. See Bishop Fell’s Note on this Passage; and Dodwell’s fifth Dissertation on St. Cyprian. To which may be added, Mr. Le Clerc’s Life of St. Cyprian, in his Biblioth. Univers. Tom. XII. p. 234, &c.

[35] Examples of this Acceptation of the Word may be seen in Tertullian, De Idololatria, Cap. XIX. in his Treatise, De fuga Persecut. Cap. III. Cyprian, Epist. X. (XVI. Edit. Oxon.) XXII. XXXI. (XXX. Edit. Oxon.) De Lapsis, p. 123. Sulpicius Severus, Hist. Sacra, Lib. II. Cap. XXXII. Num. 1 & 2. Edit. Vorst. Cap. XXXIII. Num. 3. and at the Beginning of his Hist. Lib. I. Cap. I. Num. 3. Grotius.

[36] (The Emperor Julian, &c.) This Passage does not belong to St. Ambrose, tho’ attributed to him in the Canon Law, Caus. XI. Quaest. III. Can. XCIV. where it has been observed, that St. Augustin has something like it, on Psalm cxxiv. which is also produced in Can. XCVIII. See Mr. Pithou’s Note. Our Author himself elsewhere quotes a Passage not unlike this, from the Father last named, in a Note on B. II. Chap. XXVI. § 3.

[37] This Declaration is taken from the Account of the Martyrdom of the The bean Legion, attributed to St. Eucherius, Bishop of Lyons. But Mr. Dubourdieu, Minister of the French Church in the Savoy, at London, published a Dissertation in 1705, shewing that Relation to be a spurious Piece, and that the The bean Legion never had any real Existence.

[38] Our Author says nothing that can assist us in guessing from what Part of St. Basil’s Works these Words are taken.

[1] Auctore eo, qui jurisdictionem habet. By the Authority of the Civil Power. The Reason of his expressing himself so, is, because on one hand, by the Term War, he understands all taking of Arms with a View of deciding a Quarrel, in opposition to the Way of terminating a Difference, by Recourse to a common Judge; and on the other, includes under the Name of Publick War, even that which is carried on by an inferior Power, without the Orders of the Sovereign Power; as appears from what he says, § 4 and 5. Thus all the Criticisms of the Commentators fall to the Ground; who do not consider, that our Author was at full Liberty to define his Terms as he pleased; provided he always fixes the same Ideas to them, and reasons on them conclusively.

[2] Digest. Lib. L. Tit. XVII. De Diversis Reg. Juris, Leg.176. See James Godfrey’s Comment on that Law.

[3] Cassiod. Var. Epist. Lib. IV. Ep. X. See also the Edict of Theodoric, Cap. X. and CXXIV. Grotius.

[4] Digest. Lib. IV. Tit. II. Quod metûs causa, &c. Leg. XIII. This is what the Latins call, in the Law Stile, Injicere manum, To lay Hands on; as is remarked by Servius, the antient Commentator on Virgil. In Aeneid. X. v. 419. Grotius.

[1] As when a Man is attacked either in the Night, or even by Day, in private Places; or when such as see us in Danger, will not, or cannot, assist us, and bring the Aggressor to Justice. See B. II. Chap. I.

[2] See B. II. Chap. XX. § 8. Num. 6, 7.

[3] This was the Case of Moses, when he saw one of his Brethren (that is, an Israelite) suffering Wrong, he defended him, and avenged him that was oppressed, and smote the Egyptian. Exod. ii. Acts vii. 24. For at that Time the Israelites had no Room to expect Justice from the Egyptian Judges.

[4] Solon’s Law runs thus, If any Man steals in the Day-Time, above the Value of fifty Drachms, he shall be brought before the Council of the Eleven: But whoever steals any Thing by Night, it shall be lawful to kill him, or wound him in the Pursuit. Demosthenes Orat. against Timocrates, p. 476. Edit. Basil. 1572. See hereafter, B. II. Chap. I. § 12. where the Reason of the Law is more fully considered. Grotius.

[5] This Law is preserved by Macrobius, who urges it as a Proof, that the Word Nox is by the Antients taken for Noctu. Saturnal. Lib. I. Cap. IV.

[1] Lib. X. in Lucam. Cap. XXII. p. 1782. Edit. Paris. 1569.

[2] De Offic. Lib. III. Cap. IV.

[3] De Lib. Arbitrio, Lib. I. Cap. V.

[4] Epist. ad Publicolam, CLIV.

[5] Cap. XLIII. LV. See also a Canon of the Council of Orleans, cited by Gratian, in the Canon Law, Caus. XIII. Quaest. II. Can. XXXII. Grotius.

[6] Cassiodore says, We are not obliged by any Precept, or by any Reason, to procure the Salvation of our Neighbour’s Soul by the Loss of our own, or prefer the Security of his Body to that of our own, except when we have Room to hope such an Action will put him in Possession of eternal Salvation. De Amicitia. Grotius. The Treatise here cited, is judged by the Criticks to be the Work of Peter of Blois.

[7] To this may be added, that we have no Assurance, that the Person whom we permit to kill us, rather than expose him to the Hazard of eternal Damnation, by defending ourselves, is by that Means secured from the Danger. It may even happen, that he will only become more wicked, and more hurtful to Society. Besides, a Man has not Time to examine every Thing, when in the Terror occasioned by an approaching Death, with which he is threatened by an unjust Aggressor. And after all, we only make use of our natural Right to endeavour our own Preservation; farther, in my Opinion, we are under a Sort of Obligation so to do in this Case, as I have observed on Pufendorf, B. II. Chap. V. § 2. Note 5. Second Edition. Let us add, with the late Mr. La Placette, “If Charity forbids us to kill Persons whom we know to be in a State of Sin and Perdition, it would follow, that the Magistrates have no Power to order the Execution of Criminals, whose Words and Actions make it appear, that they are not in a Disposition of making a good End. Those Wretches need only utter Blasphemies and Impieties, to shelter themselves from the Punishment they have deserved; which is absurd and insupportable. It would also follow, that no War is allowable; for as it is morally impossible, that the least bloody War should not sweep away a great Number of Wretches, who will die in bad Dispositions, no War could be carried on without exposing ourselves to that Danger, and consequently, without violating the Laws of Charity.” Treatise on the Right which every Man has to defend himself, Ch. V. To conclude, If an unjust Aggressor loses his Life, he who killed him, in defence of his own, is the innocent Minister of the Divine Providence and Vengeance.

[8] He says, that when any of that Sect travelled, they took neither Baggage nor Provisions with them, but were provided with Arms, on the Account of Highwaymen. De Bello Jud. Lib. II. Cap. XII.

[9] Orat. pro Milone, Cap. VI.

[10] De Patientia, Cap. XV.

[11] Who profess the Christian Religion. This is the Signification of the Word Brother, here used by the Apostle. He at the same time supposes, without Doubt, that the Persons, in whose Favour we hazard our Lives, deserve so great a Sacrifice at our Hands, and that we have good Grounds to believe such an Action will procure them some considerable Advantage; which cannot be said in regard to a Highwayman, or any other unjust Aggressor.

[12] If an Ecclesiastick strikes a Man in a Quarrel, and kills him with one Blow, let him be deposed for his Rashness. If a Layman is guilty of the same Fault, let him be deprived of the Communion, Can. LXIV. Our Author, in his Margin, quotes two Canons from the Decretals; one, which orders that if a Layman wounds an Ecclesiastick, in his own Defence, or on finding him in Bed with his Wife, Mother, Sister, or Daughter, he shall not incur the Sentence of Excommunication. Lib. V. Tit. XXIX. De Sent. Excom. Cap. III. Another, which makes several Distinctions, in Cases where a Man kills an Aggressor, and supposes, as the former does, that he may be killed, Cum moderamine inculpatae tutelae. With the Moderation of an innocent Defence. Lib. V. Tit. XII. De Homicidio voluntario, vel casuali. Cap. XVI. In both of them it is laid down, as a Fact, that all Laws allow of repelling Force by Force.

[13] St. Ambrose, on the Advice of our Saviour, to sell our Coat and buy a Sword, has these Words: Lord, why do you forbid me to strike, since you command me to purchase a Sword? Why am I order’d to carry a Weapon, which I am not allow’d to draw! Unless perhaps that I may be provided for my own Defence, not arm’d for Revenge. Lib. X. in Lucam. Cap. XXII. p. 1782. Edit. Paris. Grotius.

[14] Our Author finds this in Quaest. LXXXIV. on the Book of Exodus. But St. Augustin in that Place only gives the Reason, why the Law of Moses, allow’d of killing a Thief in the Night, but not in the Day. Because, says he, after Sun rising a Man might distinguish, whether the Thief came to kill or barely to steal; and in the latter Case, he was not to be kill’d. That Father makes no other Distinction; nor does he speak of what the Evangelical Law permits or requires in this Case.

[1] See B. III. Cap. III.

[2] The Epithet Lawful is taken in this Sense in the very Definition of a Will or Testament, given by the Civil Law. A Testament is there called, A Declaration of our (last) Will, made in Form; which is expressed by Justa, the very Word used by our Author. Digest. Lib. XXVIII. Tit. I. Qui Testamentum facere possunt, &c. Leg. I. See also the Fragments of Ulpian, Tit. XX. § 1. I do not know that the Terms Justum Testamentum occur in the Body of the Civil Law, precisely in Opposition to Codicils. For in the Law quoted from Digest. Lib. XXIX. Tit. II. De acquir. vel amitt. Haereditate. Leg. XXII. Justum Testamentum is opposed to Non justum Testamentum, that is, to a Will not made in Form; and this only is meant in the Title, Injusto, rupto, initio facto Testamento. Lib. XXVIII. Tit. III. It is well known, that certain Formalities are required even in Codicils; tho’ not so many as to make a Will good and valid; at least when no Will has been made before or after, which gave them Force.

[3] Contubernium, and a Woman cohabiting with a Slave was called Contubernalis: Even when a Freeman cohabited with a Slave, it was not reckoned a lawful Marriage. Inter Servos & Liberos Matrimonium contrahi non potest, Contubernium potest. Jul. Paulus, Recept. Sent. Lib. II. Cap. XIX. § 6. Contubernales, quoque servorum, id est, uxores, & natos, instructo fundo contineri verum est. Digest. Lib. XXXIII. Tit. VII. De instructo, vel instrum. legato. Leg. XII. § 33. Cum Ancillis non potest esse Coannubium; nam ex ejusmodi Contubernio servi nascuntur. Cod. Lib. V. Tit. IV. Deincertis & inutilibus nuptiis. Leg. III. Varro calls the Wives of Slaves Conjunctae. De Re Rusticâ. Lib. I. Cap. XVII. And such Cohabitation is expressed by the Word Consortium, in the Institutes, Lib. III. Tit. VII. De servili cognatione.

[4] Even among such as were Citizens, and consequently free, there were non-legitimate Marriages, which produced illegitimate Children. Paulus, Sentent. Lib. II. Tit. XIX. and Digest. Lib. XLVIII. Tit. V. Ad Leg. Jul. de Adulterio. Leg. XIII. § 1. Seneca, De Vitâ Beatâ, Cap. XXIV. and Suetonius, in Octav. Cap. XL. likewise speaks of a Sort of illegitimate Liberty. Grotius.
The non-legitimate Marriages, which our Author here means, are those contracted by Children, who being under the Power of their Father, married without his Consent; for, according to him, such Marriages were not dissolved, when once contracted; they only wanted the Effects of Law, which they would have had, if authorized by the Father’s Approbation. Thus he explains the following Words of the Lawyer Paulus, Eorum, qui in potestate Patris sunt, sine voluntate ejus Matrimonia jure non contrahuntur; sed contracta non solvuntur. In which he follows the Opinion of Cujas, Observationes Juris, Lib. III. Cap. V. But there is abundant Reason to believe the Roman Lawyer speaks only of Fathers being deprived of the Power of dissolving the Marriages of their Children under their Jurisdiction, even with their Consent. See Mr. Sculting’s Notes, Page 300 of his Jurisprudentia Ante Justinianea. As to the Uxor injusta, mentioned in Law XIII. § 1. Digest. Ad Leg. Jul. de Adulter. Cujas seems to have retracted in another Part of his Work, where he conjectures, that the Law under Consideration speaks of a Woman who has not been married with the ordinary Formalities. Observ. Lib. VI. Cap. XVI. Quae non solemniter accepta est aquâ & igni. For among the antient Romans, when those Formalities, which consisted in what they called Confarreatio & Coemptio, had been omitted, a young Woman, tho’ brought home to the House of her intended Husband, was not reckoned married fully, and according to Law: She was not yet a Member of the Family, nor placed under the Man’s Power, which they expressed by In manum Viri convenire: She had no Right of Succession to his Estate, either in the Whole, or in Conjunction with the Children proceeding from such a Cohabitation. In order to supply the Defect of the Formalities required, she was obliged to live a whole Year with her Husband, without lying three Nights out of his House, according to the Law of the Twelve Tables, preserved by A. Gellius, Noct. Attic. Lib. III. Cap. II. and Macrobius, Saturnal. Lib. I. Cap. XIII. ’Till that Time she was called Uxor injusta, as the President Brisson has explained this Matter, in his Treatise, Ad Leg. Jul. de Adulteriis, published before the sixth Book of Cujas’s Observations; that is, she was considered not as a Concubine but a real Wife, tho’ something was still wanting in that Union, for investing her with all the Rights and Privileges of a legitimate Marriage. Whereas Matrimony contracted without the Father’s Consent, or that of the Person under whose Power the Father himself lived, was absolutely null and illegitimate; in the same Manner as incestuous Marriages, and such as were contracted between a Guardian and his Ward, between a Governor of a Province and a Woman of the same Province, &c. And our Author himself, B. II. Chap. V. § 14. Note 11. suspects that the last Words of the Passage, quoted from Paul’s Receptae Sententiae, were added by Anjan, Referendary to the King of the Wisigoths. It is certain, at least, that the Roman Lawyer says the direct contrary in another Place, A Marriage cannot be good, without the Consent of all, that is, of those who contract, and of those under whose Power they are. Digest. Lib. XXII. Tit. II. De Ritu Nuptiarum. Leg. II. The Libertas non justa, alledged by our Author in this Place, was a Sort of Freedom, neither intire nor irrevocable. See the learned Torrentius on that Point, in his Commentary on the Passage of Suetonius, above quoted; and J. Lipsius, on Tacitus, Annal. Lib. XIII. Cap. XXVII. as also, Mr. Noodt on Digest. Lib. I. Tit. V. p. 33.

[5] Thus a Man could not, by a Codicil, directly appoint an Heir, or disinherit those who had a Right to the Succession. Institut. Lib. II. Tit. XXV. De Codicillis. § 2. A Slave had not the Right of paternal Power over his Children; nor even a Freeman over those born to him of his Wife, who was a Slave, &c.

[6] Pufendorf criticises this Opinion, B. VIII. Chap. VI. § 10. But it is easy to reconcile our two Authors. Grotius fixes a more general Idea to the Term War, as appears by his Definition of it, Chap. 1. § 2. See my first Note on that Chapter. According to him also, when an inferior Magistrate takes Arms for the Maintenance of his Authority, and to reduce those to their Duty, who refuse to submit; he is supposed to act with the Approbation of the Sovereign, who by entrusting him with a Share in the Government of the State, invested him at the same Time with the Power necessary for the Exercise of his Charge. The Question therefore is only, whether every Magistrate, as such, stands in need of an express Order from the Sovereign in this Case, so that the Frame of civil Societies in general require it, independently of the Civil Law of each particular State. Now I ask, if such a Magistrate has a Right to employ Arms for the Reduction of one Person, of two, three, ten or twenty, who refuse him Obedience, or attempt to hinder the Exercise of his Jurisdiction, why may he not make use of the same Means against fifty, a hundred, a thousand, two thousand, &c.? The larger the Number is, the more he will stand in need of Force for conquering the Resistance. Now this is what our Author includes under the Term War. If it be objected, that it would be dangerous to allow an inferior Magistrate so much Power, this only proves that Legislators do well in setting Bounds to what would otherwise be a Consequence of the very Design of placing the Magistrate in his Post, in order to proceed in a Manner attended with fewer Inconveniences, so that the Commentators on our Author have no good Reason for falling on him in this Place, as if he weaken’d and destroy’d the first Principles of publick Law.

[7] If any Man makes Peace or War, by his own private Authority, without the Order of the State, let Death be his Punishment? But if any Part of the State makes Peace or War of their own Heads, let the Officers of the Army convene the Authors of such an Attempt before a Councel of War; and let the Criminal, on Conviction, suffer Death. De Legib. Lib. XII. p. 955. Vol. II. Edit. H. Steph.

[8] Digest. Lib. XLVIII. Tit. IV. ad Leg. Jul. Majest. Leg. III.

[9] This Law is by Conjecture only ascribed to L. Corn. Sylla. All we know of the Matter is grounded on a Passage of Cicero, where the Orator speaks of a Cornelian Law, relating to Treason. I take no notice of his going out of the Province, heading an Army, making War by his own private Authority, going to a Kingdom without the Order of the People and Senate; which Actions as they are prohibited by several ancient Laws, so are they most expresly forbidden by the Cornelian Law Majestatis, and the Julian de pecuniis repetundis. Orat. in Pison. Cap. XXI.

[10] Lib. XI. Tit. XLVI. Ut armorum usus, inscio principe, interdictus sit. This Law has no manner of Relation to the Power of making War, in whatever Sense the Word is taken. The Emperors Valentinian and Valens forbid such as are not Soldiers by Profession, to carry Arms on a Journey. See Godfrey’s learned Comment on Law I. of the same Title, in the Theodosian Code, Lib. XV. Tit. XIV. Tom. V. p. 419. where he gives a very good Explication of that Law; and shews that movere arma, the Phrase here employ’d, signifies only to carry Arms, whether a Person makes use of them or not.

[11] Lib. XXII. contra Faustum, Cap. LXXIV. the Passage is quoted in the Canon Law, Caus. XXIII. Quest. 1. An militare sit peccatum, Can. IV. as our Author observes in a Note on this Place; where he adds that the Jewish Doctors call every War not made by an express Order from GOD, מלחמח הדשיח, a War of the Heads or Powers. See Selden, De jure Nat. & Gent. juxta discipl. Hebr. Lib. VI. Cap. XII.

[12] For this Reason the Tip-Staffs, or Judges Officers, are in the Roman Law call’d manus militaris, Digest. Lib. VI. Tit. I. De rei Vindicatione, Leg. LXVIII. See Godfrey on the Theod. Code, De officio judicis milit. Lib. I. Tit. IX. Tom. I. p. 54. &c. and Mr. De Bynckershoek observ. Lib. III. Cap. XIV.

[13] See Pufendorf, B. VIII. Chap. VI. § 10, 11. with the Notes.

[1] To the Lawyers quoted in the Margin, add Fran. Aret. Cons. XVI. num. 7. Gailius, De Pace publicâ, Cap. II. numb. 20. Cardinal Tuschus, Pract. Quaest. LV. lit. B. verbo Bellum, numb. 20. Goeddeus, Consil. Marpurg. XXVIII. num. 202. &c. Grotius.

[2] See the Law of Frideric I. in Conrad, Abbot of Usperg. Grotius.
This Law relates to the Members of the German Empire. See a Dissertation on it, written by the late Mr. Hertius, intituled, De superioritate Territoriali, § 31. where he also observes, after Fa. Mabillon, De re Diplomaticâ, Lib. IV. Cap. XX. § 5. that formerly in France, every Gentleman might make War on his Neighbours by his own private Authority. He refers us for Satisfaction on that Subject, to Mr. Du Cange’s Remarks on the History of St. Lewis, by Joinville, and to the Extract of a Book of Fa. Maimbourg, in the Journal des Sçavans, for the Year 1676.

[3] That is, though no Damage has actually ensued from a Governor’s undertaking a War, without waiting for the Sovereign’s Order. See B. II. Chap. XVI. §. 25. num. 1.

[4] Suetonius says, in one Place, that Cato had frequently declared on Oath, that he would impeach him (Caesar) as soon as he was divested of the Command of the Army. Cap. XXX. And in another Place, he speaks in general of some Persons who were for giving him into the Hands of the Enemy. Cap. XXIV. But Plutarch relates the Fact, with its several Circumstances: He tells us, that after the Victory gained by Caesar in the Belgick Gaul, over the Usipetes, and the Tenchterians, who had passed the Rhine, in Order to settle themselves, the Senate decreed publick Rejoicings and Sacrifices, to express their Gratitude to the Gods, and do honour to the General. Whereupon Cato delivered it as his Opinion, that Caesar should be delivered up to the Barbarians, (that is, the Germans) to expiate his Perfidy, and divert the Curse from the State, which that Action might draw on it. Vit. Caes. p. 718 Tom. II. Edit. Wechel. Where Plutarch produces the Authority of Tanusius Geminus. Τανύσιος δ λέγει; for that is the true Reading, and justified by a MS. not Γαγύσιος. See also what he says in his Parallel of the Lives of Crassus and Nicias, p. 567. So that Cato proposed giving Caesar into the Hands of the Enemy, not because he had made War on the Germans without the express Orders of the Commonwealth, but because that General had attacked the Germans, against the Promise and Assurance given them, and seized several of their Deputies; as appears from what he himself says in his Commentaries. Bel. Gall. Lib. IV. Cap. XI. &c. He does indeed endeavour to put a Gloss on his Conduct; but there is good Reason for believing that he here, as on other Occasions, disguises Things, in order to turn them to his own Advantage. See his Commentators on this Place, in Mr. Davies’s Edition; and Freinsheim’s Supplement to Livy, Lib. CV. Cap. LI. &c. Edit. Cleric. The Manner in which Cato gives his Opinion is sufficient for forming a Conjecture, that they were persuaded at Rome that Caesar had not dealt fairly and honestly in the Matter under Consideration. But, whatever becomes of this Question, it is evident from the Authority alledged, that our Author has not given the true Reason for Cato’s voting for delivering Caesar into the Hands of the Germans. He likewise confounds the Defeat of the Usipetes and the Tenchterians, which happened before Caesar laid the first Bridge over the Rhine, with the Victory he gained over those of Treves about two Years after; for Caesar did not till that Time carry the War into the Country of the Germans, in order to take his Revenge on them, as he himself says, for sending Succours to those of Treves. Bell. Gall. Lib. VI. Cap. IX. And this Expedition took up but little Time, and was far from being considerable. At Caesar’s Approach the Enemy retired into their Forests; and the Roman General being apprehensive he should fall short of Provisions for his Army, repassed the Rhine a few Days after. Ibid. Cap. XXIX. Tho’ Dion Cassius attributes this Motion to his Fear of the Enemy. Lib. XL. p. 151. Edit. II. Steph. But several of our Author’s Expositors have confounded Matters still more, by understanding what he here says of Caesar’s war with Ariovistus, when that Prince had possessed himself of Part of the Country of the Sequani, related Bel. Gal. Lib. I. The learned Obrecht is one who gives in to this Mistake, as appears not only from his Notes on this Work, published by one of his Scholars without his Knowledge; but also from a Corollary placed at the End of his Dissertation De Censu Augusti, which is the ninth of the Collection printed in 1704. For he there makes Plutarch say, Caesar’s War with Ariovistus being ended, Cato gave his Opinion, &c. And he maintains, that the Roman People had at that Time no Right to punish Caesar, but that the Germans had a Right to demand his Delivery into their Hands. Mr. Buddeus makes the same Supposition, in his Jurisprudentiae Historicae specimen. § 110. Even in the Application which they both make of Cato’s Vote, the last Proposition advanced by Obrecht is as false as the first is true; as I shall shew in another Place, where I shall have Occasion to speak after our Author of the War made on Ariovistus. B. III. Chap. III. §10.

[5] Livy, Lib. XXI. Cap. XVIII. Num. 6. The learned Gronovius thinks this Way of reasoning, employed by the Carthaginians, was a mere Piece of Chicanry; because Hannibal, by attacking the City of Saguntum by his own private Authority, had violated a Clause of the Treaty between the Romans and Carthaginians. It is true here was a real Infraction of the Treaty, as I shall shew elsewhere, in Opposition to our Author, B. II. Chap. XVI. § 13. But then that was the very Thing in Question; and till they were convinced of that, they might say with Reason, that the Romans had no Business to enquire whether Hannibal had acted by the Orders of their Republick, or not?

[6] In the third of his Philippicks, Cap. XI. &c. Gronovius undertakes to defend Cicero’s Opinion against the Criticism of our Author. Octavius and Brutus, says he, might have been justly blamed, if the Senate had been free at that juncture, and Mark Antony’s Enterprizes had allowed sufficient Time for consulting the Senate and People: But, as Velleius Paterculus very well observes, the Commonwealth was oppressed, and as it were benumbed under the Power of Antony. Torpebat oppressa dominatione Antonii Civitas. Lib. II. Cap. LXI. And had not Antony himself attacked Brutus merely by his own Authority? Had he not seized on Gaul? And did he not take the same Steps towards Tyranny as Julius Caesar? Good Men would be very unhappy if they were obliged to act in Form, where ill designing Persons trample on all Laws human and divine. Had Brutus waited for Orders from Rome, he would have been ruined, and all Gaul with him, before he could give an Account of the State of Affairs. In such a Case it might be justly said, that a just Presumption of the Will of the Senate, ought to pass for an express Order, according to Cicero’s Advice to the same Brutus. Epist. ad Famil. Lib. XI. Ep. VII. See Cato’s Speech to the great Pompey’s Son in Hirtius, Bell. African. Cap. XXII. and the following Note.

[7] This Example is not exactly to the Purpose, for the Rhodians were not subject to the Romans, but an inferior Sort of Allies, as our Author himself terms them, § 21. Num. 9. Tho’ in Reality, they were dependent on the Romans, in spight of the Liberty they in one Sense enjoyed. See my 25th Note on that Paragraph. Besides, Cassius, in his Reply to the Rhodian Deputies, told them, they bantered and trifled with him, when they talked of the Consent of the Senate, that Body being then dispersed by the Oppression of the Tyrants. Appian. De Bell. Civilib. Lib. IV. p. 627. Edit. H. Steph. This helps to confirm the Reflections made in the preceding Note, and I am surprized the learned Gronovius has taken no Notice of this Passage.

[1] Lib. V. § 18. Edit. Oxon.

[2] One may also translate the original Word ατοτελς, which has its own Taxes, or Imposts; that is, pays Tribute to no foreign Power. And this is the Sense which the Greek Scholiast gives that ambiguous Word. Grotius.

[3] Politic. Lib. IV. Cap. XIV. p. 379. Edit. Paris.

[4] The Greek Writer is there speaking of the Roman People, Who, he says, were from the very Beginning possessed of three great and most necessary Branches of Power, viz. that of creating civil Magistrates, and Officers for the Army; that of enacting and abrogating Laws; and that of regulating whatever belonged to Peace and War. Antiq. Rom. Lib. IV. Cap. XX. p. 215. Edit. Oxon. See likewise Lib. II. Cap. XIV.

[5] The Grammarian Servius describes the Power of the Romans in the same Manner, Omni Ditione. Omni in this Place, says he, is better than omnis, to express their enjoying all Power, in regard to Peace, War, and Laws. Grotius.

[6] In a Speech made by Manius Valerius, where he requires, that the People should be allowed a Share in the Administration of Justice, especially in Causes which nearly concern the Good of the Commonwealth; as when a Person is accused of raising Sedition, endeavouring to enslave his Country by the Exercise of despotick Power, or betraying it to the Enemy. Antiq. Rom. Lib. VII. Cap. LVI. p. 445. Edit. Oxon.

[7] Our Author has his Eye on the Place where the Grecian Writer speaks of the Power given by Romulus to the Kings, which was reduced to the following Heads, 1. The Direction of what related to the Sacrifices, and other Parts of Religious Worship. 2. The Maintenance of both the Natural and Civil Laws, with the Cognizance of the most considerable Violations of both. 3. The Convening of the Senate, Assembling of the People, giving their Votes first, and putting in Execution whatever was carried by a Plurality of Voices. 4. The Command of the Armies. Lib. II. Cap. XIV.

[8] Ethic. Nicom. Lib. VI. Cap. VIII.

[9] See Chap. I. § 6.

[10] Ethic. Nicom. Lib. VI. Cap. VIII.

[11] Ibid.

[1] What Pufendorf says, B. VII. Chap. V. may serve as a Comment on all this. As to our Author’s Definition of the Sovereign Power, see a Treatise De Jure Imperii, written by Rabod Herman Schelius, p. 132. &c.

[2] See B. II. Chap. IX. § 8.

[3] Pufendorf treats of this at large, B. VII. Chap. V. § 16, &c. It is worth while to consult him on the Subject.

[4] He makes use of the Term σύστημα, when speaking of the Amphictyons, Lib. IX. p. 643. Ed. Amst. (420 Paris.) and of the Lycians, Lib. XIV. p. 980. Edit. Amster. (664. Paris.)

[5] He calls those Bodies Συμμαχίαι, Alliances, Polit. Lib. II. Cap. II. p. 313. Edit. Paris. Tom. II. and Lib. III. Cap. IX. p. 348. because such Sort of Confederacies are commonly formed chiefly with a View of mutual Defence against the common Enemy.

[1] See my Remarks on Pufendorf, B. VII. Chap. VI. § 5. Note 2. The late Mr. Hertius has left us a whole Dissertation on this Question, which is the eighth in his first Volume of Commentationes & Opuscula, &c. Where we have a particular and exact Account of the Books published on both Sides of this Question. It must be owned, there has been much Misunderstanding in regard to the whole Subject of the respective Rights of the Sovereign and People. The first who wrote on it with any Extent, having only confused Ideas of the Law of Nature, were not sufficiently acquainted with the Topick of such Questions. Add to this the particular Interests and Passions, which in this, as in other Cases, have carried the Disputants on both Sides into vitious Extremes. But if we examine Things without Prejudice, I believe we shall find it not very difficult to establish certain Principles, which neither favour Tyranny, nor the Spirit of Independence and Rebellion. It is certain, that as soon as a People in any Manner submits to a King, really such, they are no longer possessed of the Sovereign Power; for it implies a Contradiction, to say we confer a Power on any one, and keep it still in our own Hands. But it does not thence follow, that we have conferred it so as not to reserve a Right to reassume it in any Case. This Reserve is sometimes expressed; and there is always a tacit one, the Effect of which appears, when the Person on whom the Power has been conferred abuses it in a Manner directly, and remarkably, contrary to the End for which it was conferred. See our Author, in the following Chapter, § 11. For I do not know any Man has ventured to maintain, that a Prince entirely forfeits his Right for the least Abuse of the Sovereign Authority. Princes being Men, as well as the meanest private Person, and consequently, subject to Faults, that Consideration is supposed to be taken in, when they are invested with their Power. And it is certain, that the People pardon them a great Number of crying Injustices, before they think of recovering their natural Liberty.

[2] In the Margin of the Original, we have here a Quotation from A. Gellius, which is not only faulty in all the Editions before mine, but also misapplied, as has been observed by Gronovius, in a Note on that antient Writer, tho’ he is entirely silent in this Place. The Passage in Question is as follows,
Diogenes the Cynick was a Slave; but he was sold into Slavery, and so lost his Liberty. Noct. Attic. Lib. II. Cap. XVIII.
Our Author by this designs to let us know, that among the antient Grecians every Man had a Right to sell his own Liberty directly; as appears from his Florum Sparsiones ad Jus Justinianeum. Tit. De Jure Personarum. p. 14. Edit. Amstel. where he makes use of this Passage for proving the pretended Difference between the Grecian and Roman Laws in this Particular. But the Latin Compiler of Miscellaneous Observations only means, that Diogenes from a Freeman became a Slave; for he was taken by Pirates, who sold him; as appears from the Passages of Diogenes Laertius, alledged by Gronovius on that Place. A Passage from Dion of Prusa, quoted by our Author, B. II. Chap. V. § 27. Num. 1. would have been more to his Purpose.

[3] Terence, Heautontim. Act II. Scene II. Ver. 84.

[4] Cicero speaking of the Power of the Tribunes of the Roman People says, You see plainly, Quintus, that the Tribuneship is exposed to many Abuses. But it is unjust, in the Prosecution of any Accusation, to enumerate Inconveniencies, and place Abuses to View, without taking any Notice of the Advantages resulting from the Thing under Consideration — But we should not enjoy the Advantage sought for, without that Mixture of Inconveniencies. De Legibus, Lib. III. Cap. X. Grotius.