20. CHAP. XVIII. Whether Captives ought to be kept or put to death.
CHAP. XVIII. Whether Captives ought to be kept or put to death.
B ut whether Captives should be slain, or saved, it cannot be determined in one sentence. For otherwhile, they which have saved them are blamed, and elsewhere some are called back from slaying them.
And God reproveth the cruelty of the Babylonians against the Israelites.
Furthermore Ahab because he spared Benhadab, heard of the Prophet: Thy life shall go for his life, and thy people for his people. And Saul was defeated of his kingdom, because he spared the king of the Amalekites.
Wherefore sometimes we must spare them, and sometimes they must be put to death. Which thing may well be known in one and the self-same Elias: who having slain the first two bands of fifty with fire from heaven, saved the third: which no doubt happened according to their diverse affection. For the two first fifties were altogether wicked men, contemners of the word of God and of the Prophets: But the other declared by prayers and humble speech, whereby they approved themselves unto the Prophet that some godliness and faith did stick in their mind. Also he thought it not meet to spare the Prophets of Baal because they were men wholly given to
ungodliness, neither would they yield when they were openly overcome: nay rather they were always prepared and ready to amplify and defend most shameful Idolatry, wherefore it is needful to weigh the offenses. For we account none to be our enemies for any other cause, but that they have offended and must be kept under subjection. But among other things, which lighten or aggravate the fault, are knowledge and ignorance. And that the fault is no small deal lightened by not knowing of the thing, it is certain: because seeing it hindereth the will, they which sin in such wise, seem not to have sinned willingly, but rather against their will. But we must understand that ignorance is of two sorts. One is said to be of the fact, and another of the law. That which is of the fact, doeth all wholly take away the nature of sin. As if a man meaning to kill a wild beast slayeth his own father, being hidden among the shrubs and bushes where he was not accustomed to be at another time. Nevertheless the ignorance of the law doeth not generally excuse, for every man is bound to know the laws, especially the common laws and laws of nature: and it behooveth the faithful men of God to understand the principal points of the holy laws. But if he that sinneth by this ignorance, and he that committeth those things, which he knoweth to be against right and laws, be compared together; this [ latter] is worthy of the more grievous punishment. Wherefore Christ saith:
A servant knowing the will of his Master and doing it not, shall have double punishment. And there is much difference between him which willingly and of his own proper naughtiness rashly runneth into grievous crimes, and another which is not stirred up of his own accord, but by another man: and especially by him which hath him at commandment: As were those soldiers which are spoken of in the Books of Kings. For the king of Syria sent them to apprehend the man of God. Further they went to Samaria, not by their
own will, but being after a sort led by the hand of God. For they went not of their own mind unto the City, being populous, and which they might not resist. Besides this also, they came thither without any harm doing: For they spoiled not the fields, nor fortresses, nor Towns, but followed the Prophet the right way.
2. Also it must be understood that certain nations were given over of God, and others were not. God so gave over the Canaanites, as he would have them to be utterly destroyed by the Jews. Wherefore in sparing of them when they had brought them under tribute, they most grievously offended
God, as it is plainly testified in the Book of Judges. But whereas the Gabionites were forgiven, that happened by a certain special event. There was a guile wrought, secondly there was an oath made, whereby although the Jews were not bound, yet for reverence sake of the name of God, God would have it to be of some force. Which I therefore add, because after a sort they were punished with death. For the Hebrews made them servants, and constrained them to hew wood and to draw water: and servants, (as teach the Roman laws) are in a great sort of things accounted for dead men.
But we note that of the Nations which were not given over by God there was a sundry consideration had, to wit, according to the greatness of their offenses. In so much as David most severely punished the Ammonites, because of the ingratitude and ignominy done to his Ambassadors. For when the City was taken, he commanded the Citizens to be destroyed with Saws, Rakes, and Axes, and also to be burned in Kilns, wherein Bricks and Chalk were burned. And on the other side, the Syrians whom he had overcome in war, he put under Tribute. Moreover among enemies, some repent and will yield themselves, and promise that they will make satisfaction for the injuries done by them, and doubtless those must be
mercifully spared. But there be others which with a most stubborn mind do resist, and are ready to defend their naughty acts by wars: against such we must decree the more severely. So did the Israelites behave themselves against the Benjamite's, when they had in a manner extinguished that tribe, leaving very few on live. By the like example also was that nation brought to destruction under Vespasian and Titus, because the Romans being ready to forgive them that were besieged, they very obstinately resisted. These two things did the Poet express, when he said that this was a mark proper unto the people of Rome: To spare them that were subject, and to vanquish them that were proud.
3. Furthermore enemies are spared when there is any hope of peace, that in very deed it may be the more firm, and that their minds may be the more united when the Captives being gently used are sent back again into their own country. Enemies also are saved when both sides hope for to change
Captives one for another: namely that each part may receive their own. But on the contrary part Captives are slain, that a terror may be put into the enemies least they should think that their state and lot should be easy, if without yielding of themselves they fall into the hands of their adversaries.
For over much lenity is often times a great provocation unto sin. And not seldom it is that Captives perish because of revenge, namely by reason that the adversaries cruelly slue the Captives when they had taken them. Also they seem justly to be slain, who have been oftentimes forgiven, and nevertheless return to their kind, that is, to their old wicked acts. Oftentimes did the people of Rome make as though they knew not of the treachery of Jugurth, which afterward being eftsoons begun a fresh, received a just punishment. They also are not spared, who by just conjecture are suspected, that they will do harm again unto the vanquishers. And surely, of this sort
are to be accounted the most cruel prescriptions of Scilla and Marius. For the one of these, when he understood that the common sort of people would not be quiet, he condemned them. On the other side Marius perceiving the hatred of the nobility to the destruction of the people, condemned the nobility. Both of them in very deed provided to make sure the power of their own part. But very easily are they forgiven, of whom there is no more damage to be feared when they be once overcome. For this cause
Aurelianus when he had overcome Zenobia, which invaded the Empire in Syria, and according to the manner had triumphed of her at Rome, not only forgave her, her life, but also permitted that she should live conveniently and honestly in the City. And they which for these causes that we have hitherto recited use clemency towards them that be overcome, perhaps they justly and of good right deserve to be praised. But there be others, which are led not by a virtue of the mind, but rather of a covetousness to forgive captives, namely to wrest from them a very great ransom. And they oftentimes have no consideration, either of honesty or of the commonwealth. Some also are found which spare the multitude of the Enemies, and only put to death the heads of the evil, and the principles of wicked acts, to the intent they may be examples unto the rest, that they should not adventure the like. Also in the old time among the Persians there was a law, that when any man had been convicted of a capital crime, he should not straight way be condemned, but all his whole life should be tried and diligently examined. Whereby if his notable acts were found to exceed his evil acts in number and greatness, they discharged him: But on the other side, if the offenses and evil acts had exceeded, then at length they condemned him and put him to extreme punishment. So it appeareth that Solomon dealt. For when as Abiathar the Priest had incurred the crime of
treason, he said unto him, Thou art the child of death. Notwithstanding because thou wast present with my father David in his days, and diddest put thyself in jeopardy and hast taken pains with him, therefore I will not slay thee this day: wherefore go unto thy fathers lands in Anathoth. This law of Conquerors in such sort provided against enemies, just and good Emperors are wont to restrain within certain bounds. For Cities being won, when they should be sacked, Princes are wont to set forth Edicts, whereby they charge that no violence be done to free bodies. They sometime also decreed that so many as fly to the Temples should be safe and inviolate: As did Alaricus the King of the Vandals, when he had taken possession of the City of Rome.
And undoubtedly in victory if there should be no hope of pardon to them that are overcome, the thing would be altogether cruel. Wherefore it becometh an Emperor, (unless that the causes now brought or such like causes shall hinder him) to be of a mild heart, and more inclined to save those whom he hath overcome, than to destroy them.
4. And there is no doubt, but that there be found many noble minded men.
Who notwithstanding they be much delighted with victory, yet nevertheless do very much mislike of cruelty. Aeneas who is called godly, as we read in the 10th Book of Aeneidos, sorrowed because he had slain Lausus the son of Mezentius. And Marcellus having conquered the Syracusans, who most obstinately did resist, when he beheld the city being set on fire to fall down on heaps, did weep. Thus did he sorrow for the ruin of a most unfriendly
City. Some such like thing also is reported of Scipio in the destroying of Carthage. Yea and they in old time so tempered themselves from shedding the blood of enemies, as those which were overcome they put under a yoke, as we read was done at the gallows made at Caudina. But otherwhile some
Princes being driven by indignation and wrath, no less rash than vehement,
not weighing well the matter, have so raged against their enemies, as they have caused to be slain, both the guilty and the innocent one with another.
Which happened unto Theodosius the great when he was vehemently inflamed with wrath against the Thessalonians: which sin of his Ambrose did most severely chastise. They will be provoked unto clemency if they forget not that themselves also are men: and that those things which have happened to the overcome, may sometimes also happen to themselves. Into which cogitation Cyrus fell, who having taken Croesus judged him to the fire. But he that within a while after was to be burned, began to cry: O
Solon, Solon, because he before his death had made answer unto him, when he boasted of his wealth and happiness, that none might be called happy before his death. With this saying Cyrus being moved, he not only delivered the man from death, but also held him in honor about himself, and many times used his counsel and advise. Also Iustinianus, when he had by Belisarius overcome Gilimer the king of Vandals, after he had triumphed of him, was required to decree what he would have done with him: he cried out, Al is most vain and but plain vanity: neither did he slay the man, but he banished him far off into France. Also Julius Caesar when he had obtained victory, was very much inclined to forgive them that were overcome, for which cause he is marvelously commended by Cicero. This also ought very much to drive princes unto mercy, that among their Titles they specially embrace that wherein they are called most merciful. Wherefore seeing they rejoice in this Title, it is meet they should in very deed declare themselves to be such. Verily seeing the wars which are exercised among Christians who be all of one Religion, although they be just wars be more than Civil, our Magistrates (unless that just occasions as many such like may be gathered beside those which we have alleged) ought to have their minds so
much the readier bent to show mercy unto them which be overcome. And thus far concerning this matter.
Of things which be taken by the right of war.
5. That it is possible that some things may be claimed by the right of war, it may be proved both by men's laws and by the laws of God. But I will begin with man's laws. In the Digestes De captiuis & Postliminio reversis, in the law Postliminium, the things that we have lost in war, or in the affairs of war, if we shall afterward recover again, we shall obtain them by the law
Postliminium. For so long as they are not recovered, they are possessed by our enemies. And this right is against them which are pronounced enemies.
But those were pronounced enemies against whom the people of Rome did publicly proclaim war, or they which did proclaim war against the people of Rome: as it is in the same title, in the law Hosts. For pirates or thieves cannot by this means attain to be owners, or possess anything by the law of war. For war ought to be made, to the end we may attain somewhat by right of war. And in the Digestes De acquirendo rerum dominio, in the law
Naturale, Paragraph the last: such things as are taken from enemies, are by the common law of nations straightway become theirs which take them.
And thus the laws of man, as touching this matter are very manifest. So is it also by the laws of God. Abraham as it plainly appeareth in the book of Genesis the 14th chapter, made wars against the five Kings which had led away Lot prisoner. The battle being finished, the pray came into the hands and possession of Abraham: which may easily be proved, because of that pray he gave tithes unto Melchizedek. But it had not been lawful for him to have given Tithes of another man's goods: wherefore they were his own of which he gave. By reason whereof we must believe that that pray was in his possession. For in that he gave it to the king of Sodom, it was of his mere
liberality, since he was not thereunto compelled by the law. I might rehearse what things Joshua, Othniel, David, Solomon, and many other more possessed by the right of war. For when those Princes had the victory, the things taken from their enemies came to their possession. But it is not sufficient to make war, for claiming of somewhat by the right thereof, but the war also must be just: for unless it be just, it is not war but theft and robbery.
6. But how can we know that the war is just or unjust? Augustine, as he is alleged in the 23rd Cause, Question 2, in the chapter Notandum, writeth that the war between Sihon and the Israelites was just. For they desired to pass without doing any harm through his kingdom: which in respect of the fellowship of man should not have been denied them, especially seeing they had faithfully promised that they would not be troublesome unto any man.
This sentence of Augustine the Glosser goeth about to defend, and that by the Civil laws. In the Digestes De Aqua pluvia coercenda, in the law In Summa, in the Paragraph, Item varus, something is permitted in another man's ground, so that it be done without harm of the possessor. And in the Code De Servitutibus, in the law Per Agrum: Maximianus and Dioclesian do thus decree: No man can forbid thee to use the common high way. And that thing only did the Israelites desire: wherefore being repulsed, they justly took war in hand. So much saith the Glosser: whose reason doeth not so fully satisfy me. For that which Augustine speaketh of private men, may easily be admitted: and these things which are brought out of the civil law do seem also to be written concerning private men. But if a man will lead a host through another man's Country, although they make faithful promise not to be troublesome, yet whether a way ought forthwith to be granted him and he to be believed, it is uncertain. They promise (thou wilt say) that their
Hoste shall do no harm, but if they stand not to their promises, then will the land be in their possession. Undoubtedly, Julius Caesar would not permit the Helvetians to pass through his province, although they promised that they would pass without doing injury or harm. But I say that the war which the Israelites made against Sihon was just, yet not therefore because he denied them leave to pass through his Country, but because he came with his host out of his own borders, and willingly offered wrong unto the Israelites. For every man ought to defend both himself and his against violence. That which Augustine bringeth hath some show, yet his reason is not firm. For how could Sihon know certainly, whether the Israelites would do him harm or no, especially they being so many in number? For there were six hundredth threescore and six thousand armed soldiers and well appointed to the battle. He might perhaps have permitted them to have passed and that safely, although not all of them together, but by bands. But seeing the first reason before alleged is sufficient, we need not much to labor about excusing of Augustine.
7. The same Augustine in the 105th Epistle unto Boniface: In the making of just war (saith he) many things must be taken heed of. For it is not sufficient, that the war be just, unless also the war be justly handled.
Wherefore he admonisheth his Earl: When (saith he) thou puttest on thine armor, remember that thy strength is the gift of God, and determine with thyself not to abuse that gift against God. Yea rather do this: Fight for his laws and name: let promises be kept even with enemies, but much more with friends, for whom thou makest war. By which words he blameth those soldiers which are more grievous in Cities than be the very enemies. Of which sort, we see in our days a great many more than we would, which being in their Garrisons (good Lord) how do they handle the Citizens, and
men of the country? How shameful and abominable things do they commit?
He addeth also a third Caution. Consider with thyself that war must be made upon a necessity. Wherefore have thou always a mind unto peace.
Make war because thou canst not otherwise do, but if thou canst make peace, refuse it not. War is taken in hand only for the amending of things
[that be amiss.] Yea and the Apostles did so afflict some, to the intent they might become the better. Paul said unto the Corinthians: Deliver such a one unto Satan, for the destruction of the flesh, that the spirit may by saved. And to Timothy he saith, of Hymenaeus and Alexander: I have delivered them to Satan, that they may learn not to blaspheme. So ought they also to restrain princes, to the intent that they may be made the better. And Augustine in his
19th book De Civitate Dei, saith that wars, though they be just, unto Godly men they seem both troublesome and grievous. For besides other things, which the nature of man escheweth, they shall see the wickedness of the contrary part, by reason whereof they are constrained to fight and they cannot but be sorry for it. And in the Epistle before alleged: Rage not (saith he) nor wax not insolent against those which submit themselves, but let mercy be showed to those that be overcome. Such is that saying of Virgil,
Spare thou them that be subject, and vanquish them that be proud.
8. Moreover he admonisheth the same Earl to beware of vices, which are wont to follow Hosts: Namely, of filthy lusts, of ravenous pillage, and of drunkenness. For it is a most dishonest part that thou shouldest make war for the amending of other men's vices, when as thou thyself in the meantime art a great deal more vicious, and much more art overcome both with affections and diseases, than they which are overcome. And in war we reprove not the end, but the desire of hurting, the cruelty of revenging, the outrageousness of rebelling, and the greedy desire of ruling, these things
(said he) are condemned. For they which without those vices, make just war, are the Ministers of God and of the laws. The same father against Faustus the Manichie: This order (saith he) must be kept, that the war be proclaimed either by God or by Princes, to break the pride of man, and to tame the obstinate. Moreover soldiers ought to be persuaded that the war is justly made, and not taken in hand against the word of God: otherwise let them not go on warfare. Neither do I to this end speak these things, because
I would have soldiers to understand the secrets of princes, but that to their knowledge and wittingly, they suffer not themselves to fight against true and just causes. Yet it may be (saith Augustine) that the prince himself may make war against his conscience, and yet his soldiers nothing offend, so long as they obey the ordinary power: For the people must obey their prince. And in their so doing it may be doubtful unto them, whether their prince make war contrary to the commandment of God. But they are excused, so long as they obey their own prince in a doubtful cause: their own prince (I say) and not a strange prince. Wherefore those hired soldiers cannot be excused, which having no respect to the cause, but only for money and reward sake do serve strange princes. Wherefore Jephthah thus reasoned as touching the first point of his Oration: We have taken this land by the right of war, therefore thou unjustly requirest the same again of us.
9. He addeth afterward: Our God hath given it unto us which is the Lord and distributer of all human things. He bringeth his Argument from the gift of God. And that God may give and distribute kingdoms, the very Ethnic authors saw. And therefore in Virgil, Aeneas doth so often boast, that he by the commandment of God went into Italy, and for that cause would not abide either at Carthage or in Sicilia, when he might have obtained either of those kingdoms. Augustine in his 5th book De Civitate Dei, the 21st
chapter: As touching kingdoms (saith he) and provinces, it is certain that God distributeth them, both when and how much, and to whom he will: doubtless by his judgment which is secret, but not unjust. In the book of Genesis, God promised to Abraham and his posterity the land of Canaan, but yet he promised it after four hundredth years. Now (saith he) I will not give it: for the Canaanites as yet had not fulfilled their sins. I will not cast them out now, but I will tarry till their iniquity be come to the highest, afterward I will bring you in. And in the second chapter of Deuteronomy it is written that the Horites dwelled in Mount Seir: which were men expert in wars and very valiant, whom God (saith he) drove out of those mountains, to the intent that the children of Esau might possess the land. And in the same Chapter he testifieth that he did cast out the people of Emim, and gave their kingdoms unto the Ammonites, and drove out Zanzumim out of their seats, and placed the Moabites there.
10. But if thou wilt say, that this was done by God peculiarly against those Nations, because the Edomites had their offspring from Esau, the Ammonites and Moabites of Lot, which was the kinsman of Abraham, and together with him accomplished most dangerous voyages: I answer, And this may also be said of other Nations there, which came not of Abraham.
The Cappadocians drove out the Hevites, which were the first inhabitants, who going out of Cappadocia destroyed them, and inhabited those Regions in their stead. And in Deuteronomy the 32nd chapter, it is written: When
God by lot divided the Nations and the people, according to the number of the children of Israel. In that it is said to be done by lot, that is all to be referred to our understanding, which see not the causes of things. But with God nothing is done by chance. God hath distributed the Nations, according to the number of the children of Israel. Seeing the Israelites were not yet
increased when God put the people into those Regions: who at the last gave place unto the Israelites when they came. Neither ought we to be offended, if by this distribution oftentimes fertile and fat lands happen unto the ungodly. Forsomuch as Augustine in his 4th book De Civitate Dei, the 33rd chapter saith: That gifts, which endure but for a time, happen both to the just and unjust, seeing God maketh his sun to shine both upon the good and evil, and raineth upon the just and unjust. But by this common benefit the godly sort have this commodity only, that they understand that these things are not the chiefest gifts, which we ought to look for: because these are common both to the good and to the evil. Howbeit, the godly wait for other more excellent gifts which are not common to the good and evil. Yea, and Daniel saith: The name of the Lord be blessed forever: For it is he which translateth kingdoms, and driveth out the first inhabitants, and bringeth in other. Neither doth he only bring men into provinces, but also setteth
Angels to rule over them as we there read, the prince of the Persians and Grecians: And he hath not only divided men by Regions, but also by tongues and manners. Further me must remember, that these mutations were not only done at the beginning, but also in the latter times. For the French men possessed Gaul, and the English Saxons, Britain: but the Britain's being cast out by them, found new places in Gaul by force and arms. And that part which they obtained, they called Britanie according to their own name. The men of Gaul also of late, going out of their own borders, possessed a great part of Italy. The Huns subdued unto themselves
Pannonia, and called the country Hungaria. So God distributeth kingdoms, casteth out some, and bringeth in other some, as it seemeth good unto his just judgment, which is secret. For the earth is the Lord's, and the fullness thereof. This distribution chanced even at the beginning to the sons of
Noah, and afterward to those which built the Tower of Babel: For God dispersed them throughout the whole world.
11. Now will I declare by what means God is wont to give kingdoms. He giveth them of his own liberality, no right compelling him thereto. That is the true manner of gift, which otherwise is not a gift unless it be free. And yet nothing letteth, but that God, by the duties and obedience of godly men, may be provoked to give. He giveth in deed many times things unto godly men, but yet of no duty: Because there hath been none at any time so godly, as he might desire anything of God as his own in his own right. For he must do his duty though God give him nothing. And yet there is a certain recompensing gift, although it be free and given without any right compelling it: yet because it is after a sort bestowed upon duties, it hath a show of a reward. So in Ezekiel God gave a gift unto the king of Babylon:
Because (saith he) he labored in the siege of Tyre, I will give unto him the land of Egypt. There be also amongst men recompenses: when duty is repaid with duty. These also are voluntary, neither can they be demanded by Judicial action, and therefore are they counted among gifts. But we have nothing which we can give unto him: wherefore if we attempt to bring anything unto him, we render unto him his own. And so no consideration of merit can be fit for us towards him: wherefore God giveth liberally, no law compelling him thereunto. Nevertheless, it may be demanded whether such gifts can be revoked. Why can they not? Seeing the gifts of men also are revoked sometimes: as we have it in the Code De revocatione donationum.
First if they have conditions annexed unto them, which have not been performed. And assuredly, God after that manner gave the land of Canaan to the children of Israel: namely that they should worship him, not only in ceremonies, but also in good manners and holiness. But seeing this
condition was not performed, God justly revoked his gift and led them away captive: and gave the land unto the Babylonians, Assyrians, Egyptians, and Romans. A great ingratitude also of him that is endued with the gift, maketh the gift of small force. For if he be so ungrateful as he will be contumelious and reproachful unto the giver, the gift is then revoked. So God in Ezekiel complaineth: I have clothed thee with vestures and garments of sundry colors: thou hast bestowed them upon Idols, and hast given them unto Baal: therefore will I take away my garments from thee, and my clothing's of sundry colors &c. But thou wilt say that the gifts and vocation of God are without repentance, as it is written to the Romans: that I grant, but the changing is in us, and not in God: for if we shall continue thankful, and stand to the conditions, the gift would be firm and ratified. Further Paul in that sentence spake of gifts and calling, which come unto men by the eternal predestination of God, and not of those which are given only for a time.
12. David in the first Book of Samuel the 20th chapter decreed, that the pray should be equally divided among all: For he judged it to be a just thing that they which remained with the carriage, should be partakers of the pray.
And this for many causes seemeth to be just. First because they tarried by the common consent of all. Secondly that notwithstanding they were one from another by distance of places, yet were they not severed in fellowship.
Further, seeing that they abode still weary and tired, and otherwise would have gone against the enemy: their will was to be accepted for the deed itself. Also because they set forward to the common peril: for if those former had been overthrown, these men could not have been long safe.
What if so be that in the meantime, while David was away with his, some enemy had assailed these men at the carriages: these men had been in no
less danger than those which went against the Amalekites. When Abraham had put his men in arms for the pursuing of those five small kings, and had delivered Lot, he joined unto him Abner and Eschol. But they so far as we can gather by the history did not fight. Perhaps they were left at the carriages. Yet when the enemy was overthrown, Abraham gave part of the prey to them also. And in the 31st chapter of Numerie, when war was taken in hand against the Midianites, and that out of every tribe a thousand were armed throughout all the tribes, and the rest remained in their tabernacles, when the victory was finished, the pray was so distributed, as the first part was yielded unto the Tabernacle, the second unto them that fought, and the third unto them that remained in the Camp. And in Leviticus the Priests which ministered in the Tabernacle, although they did not all minister every day, yet were they all maintained by the oblations. But good ordinances are oftentimes by men's negligence blotted out of remembrance. Wherefore it is the part of godly Princes to provide that these things may ever between while be revoked. By reason of ill manners (said he) sprang up good laws:
Even so here by reason of the malicious importunity of these men, good ordinances are revoked.
13. But this question as touching the distribution of the pray, must be somewhat more deeply considered. Ambrose in his book De Patriarcha
Abrahamo, (which place also is cited in the Decrees the 23rd Cause, question the 5th, in the chapter Dicat) saith that the soldiers take not the pray for themselves, but for the Emperor: which things must be distributed among the soldiers, at the Emperors appointment. And the Emperor himself must retain for himself a part which they call the principal part, seeing otherwise it appeareth scarce equal, that every man should catch for himself as much as he can. For so might it come to pass that every drudge or
scullion, should light upon a rich bootie, and that some captain of soldiers or well deserving soldier should be excluded. Wherefore this civil and equal way, David followed in dividing of the prey: and suffered not himself to be disquieted with the importunity and slanders of those men. So me thinketh must be understood those words which be in the Digestes De Acquirendo rerum Domino, in the law Naturalem, in Paragraph the last: namely that those things which be taken in wars, are theirs that take them. They be indeed, but at the devotion of the Emperor, not as each one will himself.
But in distributing, a proportion must be kept, not Arithmetical but Geometrical. That did Isidorus note, who is cited in the Decrees, distinct. 1, chapter 1, the chapter beginning Jus militare. For he saith, that the pray must be divided, according to every man's dignity, valiant courage, and labor, and that the principal portion should be set aside by itself: Because that portion was chosen out of the whole prey which the soldiers had carried together, and with great triumph was afterward brought into the Treasury.
Why then (saith he) did David part the pray equally amongst all? Some answer, that he by that means would provide for the common peace of the soldiers, and to quench envy. For they would all have repugned, saying, that they had been all alike strong, and that they had employed as great labor the one as the other: so as it would have been hard to give judgment afterward.
Others think that to be done, because that victory happened not by the strength of man, but by the only benefit of God. Howbeit that seemeth not to be very likely. For although it be true, that God alone gave that victory, yet did David make that law, not for that time only, but forever. And it is not credible that he would abolish the Geometrical proportion: or if that God gave the victory, that therefore he would exclude just order: in as much as God commanded to retain that, even in those things which were specially
given by him. For in the distributing of alms, he would have a consideration to be had chiefly of our household, and of the faithful. So as in distributing of the pray, David was to keep a certain proportion of justice. For in the Gospel the Lord gave more unto him that had gained five talents, than unto him which had gained only one. Wherefore I thus affirm, that David divided not the pray equally, but had a consideration of the soldiers. Nay rather (wilt thou say,) the letter Caph being doubled, doth show an equality of likeness.
For saith Isaiah: Such as the people is, such shall be the Priests. Again, Such people as mine be, such a people be thine. And again: Such as my horsemen be, such be thy horsemen. There is in very deed some equality even in this place which hath recourse both to the one and to the other. And David made as well the one sort as the other partakers of the pray, and that also after one manner: yet so, as a proportion might be kept what each one had deserved, not only of them which fought against the enemy, but also of them which remained with the carryings. Wherefore in my judgment this is the meaning: That David indeed gave of the pray unto all, but yet that he had a consideration what each one had deserved. And thus the law was just, which otherwise might have seemed unjust.