FOrsomuch as the life of man holdeth on a traueilers course continually as it were vnder saile , either in the calme of Peace , or the tempestuous sea of Warre : it behoueth euery well gouerned Common weale to bee prepared for the one and the other . which moued wise Princes and Magistrates , not onely to deuise Lawes how men might siue peaceably , but also to prepare Armes , both defensiue forraine inuasion , and correctiue against domestical insurrection . It therefore seemeth expedient to conioyne good Lawes vnto Armes : th' one command , th' other to execute : yet because they are in nature diuers , or rather contrary , it prooueth a matter of much difficultie . For well we see , betweene equitie and force is no proportion . Lawes are friends to peace and rest : but war is alwayes accompanied with men of audatious , sudden , and seuerest spirit . The Philosophers and wise Lawmakers therfore haue endeuoured more , to make such warres as might assure peace , then to enioy such peace as might not be able to withstand warre . Iustinianus desiring to vnite Lawes and Armes , authorised one Officer to command both Martially and Ciuilly , whom be called Praetor ; and so the Romanes continued that name for their General of warre . His office was mixed both of authoritie Martial , and Ciuile . It seemeth therefore that as our bodies cannot without sinowes and blood be strong , so the warre without ayde of Lawe and equitie may not endure : which mooued wise men of former ages to be perswaded , that Prudence and Power ought neuer to be disioyned . Of which opinion the ancient Poet Horace seemed to be , saying , Vis expers consilij mole ruit sua . The same reason induced learned writers , to commend valiant Captaines and wise Counsellors , ioyntly , and ( as it were ) in one and the selfe same ranke . With Croesus they coupled Solon : with Simonides , Pausanias : Pericles with Anaxagoras . The Poets likewise in their workes do praise Agamemnon with Nestor : Diomedes with Vlisses : meaning to mixe force with policie , and ciuile Lawes with power and Armes . The Kings of Lacedaemon before they went vnto the warre , did first sacrifice and consult with the Muses how they were to proceed : for so did Terpander and Pindarus men of speciall note in Sparta , and which were employed to set foorth the praises of such of the Lacedaemonians as were both in Musicke and Armes excellent . The Romanes did highly and openly extoll Quintus Fabius Maximus , Rollianus , and Pub● Decius , for their notable knowledge as wel in Armes as learning . Thus doeth it appeare , that Armes and Lawes cannot bee disioyned : and consequently , where the counsaile of Captaines is directed by Law , equitie and Religion , there insolencie , fury , and vnlawfull force is repressed .

HAuing discoursed what concord ought be betweene Militarie and Ciuile gouernment , it seemeth requisite to say , that Militarie Iustice generally is a Law made by consent of all Nations , the propertie whereof is to repulse force , and to redresse iniurie . For who so in defence of his owne person doth resist force with force , shall be thought to haue so done iustly . And albeit bruit beastes do seeme in some sort to offend , and defend without the aide of wit , and humane forecast , yet because all they do , is without discourse of reason or election , it cannot be said that they vse force according to Iustice , but rather mooued by naturall instinct , consequently attempt without order , or warrantie of any lawful proceeding , which indeed liueth onely among men . For admit that no Lawes were , and all things left subiect to Fortune and chance , yet such is the force of equitie and reason , and the root thereof so firmely fixed in the minds of men , as though neuer so much defaced & obscured in sauage and degenerate natures , may not yet vtterly be razed out of the mindes of any , be they neuer so outrageous , but that at one time or other , either openly to the world , or inwardly to themselues , will they , nill they , some vigorous and liuely sparkes thereof will appeare . The like may be particularly said of Iustice Militarie , whereof in the minds of Souldiers so deepe an impression is made , as no force or time can raze it out . And touching the execution of Iuridiction Militarie , we say the same was euer performed by Iudges and Magistrates thereunto purposely appointed , and that men of Armes and all other Souldiers were in al Militarie matters , directed , punished , & ordered by their proper Commanders , as in ancient time they were in Rome , and since in France hath bene vsed . But first , to touch the original of Martial iustice , it seemeth to haue bene taken from the Romanes , who for causes reasonable , bestowed vpon men of warre great priuiledges , dignities and immunities , afterwards confirmed and increased by diuers Emperous . By whose example some Kings of France , and other princes haue done the like . Yet true it is , that at the beginning , such iurisdiction was executed onely in the field , by the Tribunes , or their deputies , I meane in ordinary offences , or els by the Legate in their absence , or els by the Consul or Generall , in causes capitall , and faults of most importance . But in processe of time , the insolencie of Souldiers increasing , the sayd iustice became more generall , and the authoritie thereof extended into all townes and places whatsoeuer , inflicting exemplarie punishment according to the qualitie of eche mans offence , yea , in the end the reputation of Martial iurisdiction became equall to that of ciuill Iustice .

CIcero sayth , that discord and dissention among men , is ended either by persuasion or force : the one proper to men , the other to brute beasts : and where the first cannot preuaile , the other may be excused . Reasonably therefore are those warres to be taken in hand , where iniurie can not be otherwise repulsed , nor peace by other meane preserued . And most apparant it is , that nature hath bestowed vpon all creatures certaine armes or weapons wherewith to defend themselues , and offend their enemies , yea , whoso obserueth shall see , that ech liuing bodie is in some sort by nature disposed to make warre : as the calfe , before his hornes be growen , doth indeuour to offend with his head . The colt turneth his heeles when his hooues are scarsely hard . The little whelpe , whose teeth be tender and vnfit to bite , will neuerthelesse do his best to offend with his lips , Man likewise , of all other creatures least furnished both for offence and defence , will with all his strength , hands and feet , labour to resist his foes , as appeareth euen in children , who prouoked to anger , do spurne and bite ; haply moued thereunto with desire of victorie onely . The same reason inciteth men , both in generall and particular , to contend : so as one citie maketh warre against another , one prouince inuadeth another , and whole kingdomes and common weales doe endeuour to oppresse one the other . Yea , the affections in euery sole body , do ( among themselues ) str●ue and make warre ; which mooued some Philosophers to say , That no victorie is woorthier of commendation then that wherein man doth conquer himselfe . Fortior est qui se , quàm qui fortissima vincit moenia : nec virtus altior ire potest , sayeth Ouid. Seeing then that each man hath warre within himselfe , and against others , and cities contend for honor and empire , one taking from the other , what can be sayd Ours , more then that , which is gotten and defended by armes ? Yet true it is , that some warres are not properly so called ; as where one part of the people doth assault the other : for that kinde of contending ought be named sedition : but when one Nation taketh Armes to offend an other , there wee say is warre . When the Romanes were diuided , one faction labouring to oppresse another , ( who by nature ought to haue ioyned together ) such enimitie was called Sedition : but when the Galls , the Carthagenians , or other forreigne people assaulted the Romanes , or were by them assailed , that contention was truely called Warre . But omitting to say more of ciuil or domesticall dissention , let vs discourse of that Warre which is ordinarily made with forreine people , for Empire and glory , as when the Romanes tooke Armes against the Latines , Sabines and Carthaginenses , or when they fought with the Celtiberi and Cimbri , not who should command , but who should liue : yet ought the cause whereof the Warre groweth be iust , and such as the enemie cannot but acknowledge reasonable . For who is so impudent as will deny that if iniury be done , or the goods or honour of other men be taken , but hee from whom the same was taken , is iustly caused to become an enemie ? Non licet cum alterius incommodo suum augere commodum . Yet Aristotle proueth that some men are by nature borne to command , others to obey , whereof may be inferred , that Warres are necessary as well to compell those to subiection that are destenied thereunto , as also for others ( who ought to gouerne ) to hold their auctoritie . The Romanes also did thinke good sometimes to make Warre onely to entertaine the youth fit for seruice ; as when they sent their Armie vnto Carthage , being perswaded that ouerlong idlenesse might corrupt . For indeed , the labour and discipline of Warre , doth make men honest and temperate . It seemeth therefore that Princes martially disposed , haue not onely thereby purchased renowne , but also much enlarged their dominions For which reason the Lacedaemonians do seeme to accuse Pausanias iustly , for inhibiting them to extend the bounds of their dominion . But contrarywise Lycurgus and Minos are much praised perswading the Lacedaemonians and the people of Cyprus to aduance their glory , by Warre : whereof wee may inferre , that Peace is not the onely ende of Warre : yet not doubt the chiefest and most necessary cause thereof , according to the opinion of Cicero , saying , Nullum bellum esse iustum , nisi quod aut rebus repet t is geratur , aut denuntiatum antè sit & indictum . Whereby appeareth that Warres ought not to be made without iust cause , and publique expostulation . And Plutarch writing the life of Numa , saith it was not lawful for a King or any Souldier to take Armes , vntill the Foecials had so commanded or allowed . Wise Princes and commanders therefore ought to deliberate maturely before they take Armes , to the ende the Warre may be iust , and the proceeding thereof aduised . In which point they shall doe well to imitate the example of Traianus , who vsed to obserue these cautions viz. carefully to supply the places of Souldiers slaine : couragiously to represse the enemies pride : and according to discipline Militarie , compell Muteners to obedience and order . To that purpose also , Octauianus Augustus did say , No warre ought be taken in hand , vnlesse the same did promise more hope of profit , then feare of losse . For who so shall otherwise doe , may be compared vnto a Fisher , that angleth with an hooke of gold , which being broken , or lost , al the fish he hath gotten , sufficeth not to make a recompence .

THat men of warre haue beene anciently called Milites , euery man knoweth : but for what reason that name was giuen , euery one is not enformed . We say therefore with Vlpianus , that men professing Armes , were called Milites à malitia , idest duritia , which is as much to say , as they were so named in respect of the hardnesse and danger they indure in defence of other people , or else because they repulse the euill and iniurie which enemies doe ofter . Romulus called vnto his guard a thousand men , and some writers haue thought , that thereof Souldiers were called Milites . Howsoe●er that were , sure it is that anciently who so would become a Souldier , it behooued him to procure his name to bee enrolled in the Generals booke . For necessarie it is , that he who commandeth should know what number , and so what qualitie his souldiers be . Which reason mooued Alexander Scuerus to keepe in his chamber a Catalogue or Rolle of his souldiers , and at his leisure , considered of their suites , their number , their dignities and wages . Hee likewise cautiously prouided , that no man should aspire to priuiledges Militarie , by ambition , but for vertue and skill . And who so desireth to enjoy the honours appertaining to Armes , ought first to prooue he is a Souldier . In which case the lawes of Cossus , Crassus and Sceuola must be remembred ; for thereby is decreed , that as a man being no citizen , should not take vpon him to be a citizen , so he that is not enrolled a souldier , cannot anow himselfe a souldier . By the lawes Ciuill , three wayes there are for souldiers to proue their profession : which done , they shall not afterwardes endure any vnworthie or vnreasonable imposition . The first proofe is by letters & certificate of Captaines or Officers . Charles the seuenth king of France commanded that no man should be capeable of charge or office in the warre , vnlesse he were authorised by the Kings letters and 〈◊〉 , in testimonie of the publique honour and degree hee had . Secondly he ought to make proofe , that in former time he had behaued himselfe as a good Souldier , and such a one as serued long with commendation . Lastly , to be recorded among the number of receiued souldiers , for that testimoniall cannot be disproued . It was also anciently vsed , that in token of honour due vnto souldiers of good merit , a girdle was giuen ; for it is written in the law Imperiall , Militia exornatos confestimcingi debere . And Charles the seuenth king of France in his Edict saith thus : Edictum est , ne quis Miles in numeros referatur , qui non cinctus , sit armis● ▪ it a munitus , vt probum decet militem . All Souldiers who serued on horsebacke ( by the Romanes called Equites ) vsed to carry on their left arme a certaine shield or buckler , and in the right hand a lance , and vnto their side a Spanish sword was girded . Thus appeareth it that the girdle was the first Ensigne bestowed vpon souldiers , and without it no man might accompt himselfe among the number of militarie men , nor claime the priuiledges due vnto souldiers . For only they that were inrolled and girded were properly called souldiers : and they that were newly elected to supply the bands , were named Tirones . It was also an vse among the Romanes , that when any Captaine attained this Ensigne of the Generall , he then deliuered a Rolle or list wherein his number was conteined . By which meanes the Commander generall might be informed of his whole Armie . It is also to bee remembred , that besides these inrolled men , doe appertaine to euery armie certaine supposed souldiers , who are men absent , or not vsed , and neuerthelesse may enjoy the immunities of the warre : for so was it decreed by Claudius the Emperous , calling those sorts of Souldiers Militia imaginaria .

TO exact an oath of Souldiers was euer thought necessary , not onely for the Common weale , but also for the Souldier himselfe . For at such time as Souldiers serued voluntarily , Lucius Flaccus , and Caius Varro being Consuls , the Senate of Rome thought fit to compel men of warre to sweare , though before that time no oath was taken , but at the pleasure of him that would . Cincius in his first booke de remilitari , affirmeth the oath to be thus : or to this effect . In exercitu decemquc millia passuum prope , furtum non facies dolo malo , solus neque cum pluribus . Extra hastam , hastile , ligna , pabulum , vtrem , follem , faculam , si quid ibi inueneris , sustulerisue , quod tuum non erit , quod pluris nummi argentei erit , vti ad Consulem Caium Laelium , Luciumue Cornelium , siue ad quem corum ius erit , proferas : aut profitebere in triduo proximo quicquid inuencris , sustulerisue dolo malo : aut domino suo , cuius id censebis esse , reddes : Vtine quid non recte factum esse voles . Wee read also , that long after Petreius forced the Souldiers of Pompey to sweare they should not abandon their Captaine , nor Campe ; neither should they doe any treason , nor consult one with another priuately . The like oath was ministred vnto the Souldiers of Domitianus by Caesar , and they became the more obedient . To which agreeth that of Polybius , Sc obtemperaturos , & facturos quicquid mandabitur ab Imperatoribus iuxta vires . Out of Liuie lib. 22. Sese fugae atque formidinis ergo non abituros , neque ex ordine recessuros , nisit teli sumendi , aut petendi , aut 〈◊〉 feriendi , an t ciuis seruandi caussa . Also Consulis iussu se conuenturos , nec iniussuabituros . Out of Halycarnasseus Lib. 10. Secuturos se consules , neque signa desertures , neque aliquid contra populum facturos . These wordes also Scipio sware , Liuij Lib. 22. Vt ego Rempublicam non deseram , neque vllum ciucm Romanum deserrepatiar . Si sciens fallo ex animi mei sententia , tum me Iupiter Opt. Max. domum , familiam , remque meam pessimo laetho afficiat . The oath was taken in the presence of the whole Legion , by one Souldiour holding his drawen sword in his hand , and then all the rest seuerally answered drawing their swords , Idem in me . After vnder the Emperours was added , Se Caesaris salutem omnibus rebus antelaturos . And they which tooke oath to Iulian the Emperour , laying their swords to their necks sware , Se omnes pro eo casus quoad vitam profuderint , si id necessitas exegerit , perlaturos . In the declining state of the Romane Empire , when Barbarians were enrouled among Romane souldiers , they were branded with the Emperours marke , and tooke their oath , Per Deum , & Christum , & Spiritum Sanctum , & per Maiestatem imperatoris omnia se facturos quae praeceperit Imperator , nec mortem recusaturos pro Romano Republica . In France also it was anciently vsed that euery Souldier receiued into any band , or ornified with the girdle Militarie , should be sworne vnto the King or the general of horse , if he were a horseman ; or seruing on foot , his oath should be taken by the Praetor , or Captaine of footmen . And so greatly was an oath esteemed , as Caesar procured a Law to be made , that no Citizen vnsworne , should remaine out of Italy more then three yeeres . By imitation of which example , the Senate of Rome decreed that all Magistrates should sweare to answere truely vnto those Interrogatories that were propounded . The Souldiers of that time did sweare by the gods ; and Radamanthus did thinke that all doubts ought bee decided by oath . Either else they were to sweare by the winde , & the sword : because the one was cause of life , th' other of death , for such was the Scythian vse ; Or else by Iupiter , Mars and Pallas ; or sometimes by eleuating a Scepter , which Princes in old time accustomed . But the Christians doe sweare in forme according to the pleasure of the Prince , the Generall or Chief●aine : but in matter the oath of Christians is to sweare by the Deitie , As by God , or by his holy Euagelists , &c.

ALbeit the warre is to employ men of diuers qualitie , yet ought they onely to be reputed Souldiers , that make profession of Armes . Therefore out of that number , Victualers , Merchants , Artificers , and generally all men attending their owne priuate profit , are excluded . Neither ought any of them be priuiledged by the warre , because such negotiants be occupied in their owne commoditie , and therefore , as men of base sort , vnworthy to be numbred among men of warre : because their onely endeuour is to gaine : which they cannot ( nisi admodum mentiantur ) we also accompt to aduocate , procurer , pleader , or perswader to merit the immunitie of warre . For Claudius the Emperour commanded that euery souldier should ( without counsell ) render a reason of his owne life . The Philosophers also thought those men needlesse in euery common weale : Neither can wee allowe Ploughmen to bee properly called souldiers , when they are first pressed to supplie the want of men trained ; yet true it is , that in respect their bodies are accustomed to hardnesse and labour , they become oft times men of good seruice . And some great Captaines and Generals also , liuing a rurall life , haue neuerthelesse performed their office with much glory , as Fabritius , Cincinnatus , and others . Martianus the great doctor did also reiect bondmen , as persons improper and vnworthy the name of souldiers , affirming it vnnaturall for him that was not his owne , to serue any other master then him onely to whom he was bound . And to say truely , the mind of man vsed to slauery , is base , abiect , and vnapt for the warre : Yet hath it bene seene , that in times of necessity those men haue bene employed For we reade how Marcus Antoninus the Emperour , after the warre of Carthage , trained a great number of slaues , and made them fit for armes , calling them volones . And Sex●us Pompeius in the ciuil warre of Italy against the Romanes armed many bondmen . Yet certaine it is , that no slaues were receiued for souldiers , vntill they had bene enfranchised ; and so was it decreed by Lucius Aemilius Paulus , and Terentius Varro , then Consuls .

And for asmuch as the name and dignitie of a souldier is honourable , all persons hauing committed any infamous crime , and thereof conuicted , ought not afterwards beare armes . Also because the warre requireth beautie and force in men , no souldier should bee allowed , that wanteth any member or limme of his person , which moued the Emperour Domitianus and Nerua to decree , that no childe should be gelded . And Constantinus commanded that vpon paine of death no Eunuch should be made , being perswaded that gelding did take from men the courage and viuacitie required in warre . Yet was it allowed by the ordinance of the good Emperour Traianus , that albeit a man were borne with one onely stone , or by anie mishap did loose it , yet might he by the lawe Militarie beare Armes ; for Silla , and Cotta had naturally that imperfection . Wee conclude therefore that some fort of Eunuches ( but no gelded man ) may beare Armes . And histories doe make mention that the Enunch Narcete in the reigne of Iustinian expulsed the Goths out of Italy . Likewise Eucherius a principall fauourite of the Emperour Constantius was both an Eunuch and a Captaine very notable . And Cyrus hauing conquered Babylon made choice of Eunuches onely to guard his person , holding them of no lesse force then other men , and by example of horses gelded , was perswaded , their bodies were no whit disabled for the warre .

But as these before may not be receiued , in respect of natural debilitie , so others for respect of qualification , are priuiledged and excused , as Priests , and persons Ecclesiasticall , to whom Romulus granted Immunities : the like grace was giuen to the Druides in France , by Caesar : also all Graduates in schoole may challenge that priuiledge .

The same Immunitie is also due to men aged , and those youths that are not of perfect strenght ; for so was it iudged by Gordianus the yonger : In which point the law of Gracchus is also much to bee liked , for thereby hee commaundeth that no person of lesse age then seuenteene yeeres should be called vnto the warre .