Five Cases of Conscience, Case 3
The CASE of a MILITARY LIFE.
SIR,
IN referring over your friend to me, you have pitched upon one of the unfittest persons in the World, to be consulted in cases of that nature; who am altogether a stranger to the Publique Affaires of Christendom, and understand nothing at all of the mutual Interests, Relations, or Transactions of foreign Princes or States; yea so little curious have I been to inform my self, so much as where the Stages lay of the chiefest Actions of these latter times abroad, or what persons were engaged therein; that I have something pleased my self (perhaps too much) with my own ignorance in our home Affaires: accounting it among the happinesses of my privacy and retiredness, in these unhappy times; that amidst so much fury and bloodshed on every side, it was never my hap to be within the view of any Battel or Skirmish; nor did I ever see so much as a Pistol discharged, or a Sword drawn against any single person, since the beginning of the Warr. I could have wished therefore, since my opinion herein is desired, that I had had the oportunity to have advised with some more knowing Men, and of greater experience and judgment then my self in these matters; or at least, that you had sent me, together with the two enclosed Letters, a transcript of your Answer (whose Iudgment I do with great reason very much value) unto the former of them; for there I assure my self, I should have met with such Materials as would have served me for a good foundation to work upon; yet to satisfie your desire, so far as in me lieth, and the rather for the Gentlemans sake your friend, (who though unknown to me by face, or till the receipt of your Letter, so much as by Name; yet by his Letters appeareth to be a Person of Piety and Ingenuity, and a great Master both of Reason and Language) I have endeavoured (with reservation of Place for second thoughts, and submission to other Judgements) to declare what my present apprehensions are concerning the whole business; wherein the resolution of such doubts, as in point of conscience may arise, or of the most and chiefest of them, will (as I conceive) very much depend upon the consideration and right application of these Four things, viz.
I. The different sorts of Mens imployments in general.
II. The nature of the Souldiers imployment in particular.
III. The end that Men may propose to themselves in following the Warr; or what it is that chiefly induceth them thereunto.
IV. The condition of the Person so imployed, or to be imployed.
I. Considerations of Mens imployments in general.
1. MEns imployments are of two sorts.
The one of such as any man may (without blame from others, or scruple within himself) follow, meerly upon his own score, if he find himself in some measure able for it, and have a mind thereunto; he hath a power in himself (aud that jure proprio, by a primitive and original right, without any necessary derivation from others) to dispose of himself, his time and industry, in that way; for the exercise of which power, there needeth no special or positive warrant from any other person, but it is presumed he is (as in relation to others) sufficiently warranted thereunto in this, in that he is not by any Superiour Authority, Divine or Humane, forbidden so to do; and upon this account it is, that Men betake themselves, upon their own choice and liking, to Husbandry, Merchandize, Manual Occupations, the study of the Law, &c.
2. But another sort of Imployments there are, whereunto a man hath not a just right primitively and of himself, neither may he lawfully exercise the same meerly upon his own choice, but it is necessary, that that power should be derived upon him from some such person or persons, as have sufficient Authority to warrant him for so doing: Such is the Imployment of a Iudge, a Constable, an Arbitrator, &c. which are therefore said to be juris delegati, because the right that any man hath to such Imployments accrueth unto him by virtue of that Authority which he receiveth by Delegation or Deputation from some other that hath a right by Command, Election, Nomination, or otherwise to Empower him thereunto, whence are those usual forms, Quo jure, Quo warranto? Who made thee a Iudge? By what authority dost thou those things? or, Who gave thee this authority? A man may betake himself to the Study, and so to the Practice of the Laws, of his own accord, but he may not take upon him to be a Iudge without Commission from his Sovereign; so he may follow Husbandry, and Merchandry, upon his own choice, but he may not do the Office of a Constable, unless he be chosen by the Neighbours; or of an Arbitrator, unless chosen by the Parties thereunto.
3. Now although as well the one sort as the other, after a Man hath addicted himself to the one, or is deputed to the other, may not unfitly be termed his Particular Calling, and the latter perhaps with better propriety, then the former, (for the word Calling properly importeth the Action of some other person) yet according to the common Notion, which by custom of speech among us, we have of these terms [The General and the Particular Calling] the Imployments of the former sort, are usually taken to be the Particular Calling of Men; and those of the latter sort, will be found (if well considered) to fall rather under the General Calling, as branches or parts thereof, inasmuch as the exercise of such Imployments, is a part of that moral duty, which all Men (according to their several respective Relations) ought to perform to others, being by them empowered thereunto, upon the tie of Obedience, Contract, Friendship, &c. but for distinction sake, as the Latins make a difference between vitae institutum and munus, we may call those of the former sort, Mans profession, and those of the latter sort his Office; so a Man is by Profession a Lawyer; by Office a Iudge; by Profession a Husbandman; by Office a Constable.
4. To bring this Discourse home to the present business, we are next to enquire, to whether sort of the two, the Imployment of a Souldier doth more properly appertain; that is, whether we are to conceive of it as a Profession which a man may at his own choice fix upon, as his particular vocation; or rather as an Office of duty and service, which he is to undergo, when by the command of his Prince, he shall be thereto appointed, and so to come rather under the notion of a General Calling? To me it seemeth clearly to be of the latter sort. For (1.) in the passage of St. Paul, 2 Tim. 2. 4. No man that warreth, entangleth himself in the affaires of this life, that he may please him that hath chosen him to be a Souldier; the word is foreign, applyed to him that warreth with the note of Universality (foreign) annexed, seemeth to imply, as if he supposed that no man might go to warr, unless he were chosen for that service by some other person that might Command it. Nor do I see (2.) what good construction can be otherwise made of that speech of our Saviour, Mat. 26. 57. All they that take the Sword, shall perish with the Sword; or what should be the crime there intended to be signified, by this Phrase of taking the Sword, if it be not this, for a man to take the Sword into his hand by his own authority, before it be put into his hand by that Supreme Power, whom God hath immediately trusted with the bearing and managing of it. Now (3.) can that be said to be a Mans Profession, or particular calling, which Men of all Professions are (in obedience to their Governours, and for the service of their Country) bound to perform whensoever they shall be by Lawful Authority, called and appointed thereunto.
5. If these premises will be granted, it will soon appear, that the answer to the Question proposed, in the beginning of the former Letter (as it standeth there in Terminis, and in Thesi, abstractedly from the consideration of the person in the said Letter charactered, and those other circumstances which may vary the Case) must be in the Negative, viz. That it is not lawful to be a Souldier, upon the same account that men apply themselves to Trades, to the practice of the Laws, and to other (like) civil Imployments.
II. Consideration of the Souldiers Imployment in particular.
1. THe care that ought to be in every Man that taketh upon him the exercise of any Office, to be well assured that he hath a sufficient right and warrant for so doing, is no less requisite in a Souldier, then in any other Officer; yea rather by so much more requisite in him, then in most of them, by how much the matter he is conversant about, (viz, the Life of Man) is of greater consequence, then are the matters in which most of them are employed; for the Souldier every time he draweth his Sword in the field, is by the very nature of his Imployment supposed to do it either with a resolution to lose his own, or to take away his enemies Life; else he doth but prevaricate, and is unfaithful in the service he has undertaken: In which service if it be his fortune either to kill or to be killed, he is actually and deeply guilty; but if neither, yet that very resolution maketh him intentionally guilty of the Transgression of the sixth Commandement, Thou shalt not kill▪ in case he have no good right, so far to dispose either of his own, or the others life. It concerneth him therefore to look well to that; both what power belongeth to him, as a Souldier, and by what Authority he claimeth the exercise of such a power.
2. Most certain it is, that properly and originally the power to dispose of Mans Life (Ius vitae & necis) belongeth to God alone, who is Dominus vitae & necis, as the sole author of Life, so the sole Lord and Master of Life and Death; some part of which power, since it hath pleased him for the good of humane Society, (in the preservation of Peace and Iustice, and the punishment of such as are enemies to either) to communicate unto men (which power so communicated, is that which we use to call Ius Gladii, or the power of the Sword) it may therefore be lawfully exercised by men; but within that latitude, and in order, as God hath communicated it to them, but not farther nor otherwise.
3. Now God hath not given to any man, either Sovereign or Subject, power over his own life, to destroy it by his own voluntary act in any Case; no nor yet power to expose it to the certain hazzard of being destroyed by another in fight, saving in the one only case of just and necessary defence: under which notion is to be comprehended also the hazzarding of the Princes life, in a just and necessary Warr; out of which Case, whosoever shall expose his life to hazzard by fight of his own accord; if he perish in it, cannot be excused from being guilty of his own death, nor from usurping a power over his own life, which God hath not allowed.
4. Add hereunto the injustice, that he thereby doth to his Sovereign and Countrey. God hath given to his Vicegerents here on Earth, a right in, and a power over the persons of all their Subjects, within their several respective Dominions, even to the spending of their lives in their Countries service, whensoever they shall be by their Authority required thereunto, which they cannot therefore prodigally spend at their own pleasure, without apparent wrong done their Governours interest; for as he that shall kill a private person, is not only an offender against God, and against that person, in depriving him of life; but is also by the Interpretation of the Laws, (according to the importance of the ancient form of Enditing) an offender against the Crown and Dignity of his Sovereign, in depriving him of a Subject, and consequently of the interest he had in his person, and of the use he might have had of his service: so he that is so prodigal of his own life as to hazzard it upon the Sword in fight, without his Sovereigns Authority, if he perish, is not only guilty of his being accessary to his own destruction; but doth also an act injurious and prejudicial to his Sovereign, at whose service and disposal (under God) his life and person ought to be.
5 And as his presumption cannot be excused, if he be slain upon that account; so neither can he justifie the killing of another (though an enemy) in Battle, if he have no other warrant for taking of Armes, then from himself; for Warr is a kind of judicature, wherein the Prince that wageth the Warr, is as the Iudge that giveth sentence of death against the Enemy, as a disturber of the Peace of his Country, and all that engage in the Warr under him, are but as so many executioners of the sentence pronounced by him; and he that executeth the sentence of death upon another, must do it by some lawfull Authority, as well as he that pronounceth the sentence; or else he is a Murtherer, as well as This. Now the Souldier that by fighting on the one side, doth ipso facto declare against those of the other side as Enemies; if he so engage of his own mind only, he doth indeed, upon the point, take upon him the Office of a Iudge, being none, and so runneth before he be sent: or if it shall be said in his behalf, That he doth it not as a Iudge, but as the Executioner of the sentence pronounced by that Prince into whose service he hath put himself, and who by the accepting of his service hath sufficiently authorized him to do such execution: Your Letter hath suggested to me this ready Answer, That the sentence pronounced by one that is not his Lawful Sovereign, and by consequence, whose judgment he is not warranted to follow, is of no more validity (as in relation to him) then Sententia lata a non judice, and therefore can be no warrant to him to execute it. True it is, that with licence from his Sovereign, he may serve under another Prince, and consequently do such execution, as we now speak of; because the Sovereign by so licensing him, doth really referr him over from himself to anothers judgment, and consequently warrant him to follow the same, and so render him capable (upon the others acceptance) to execute it. All this is true, but nothing to our purpose, because it doth destruere suppositum; for we now suppose the Case of a Souldier putting himself into service, under a Foreigner of his own mind, and where himself thinketh good, without the knowledge or licence of his own lawful Sovereign.
III. Consideration of the end to be proposed by the Souldier.
1. SIth the goodness or badness of Mens actions and undertakings dependeth very much upon the end which they propose to themselves therein; he that would desire to lead a Souldiers life, must narrowly examine his own heart, what it is bona fide, and in very deed, that first and chiefly induced him to that desire, and what affinity there is between that end, which he proposeth to himself, as the main scope of his Intentions, and that which is or ought to be the true end of the thing it self; the true end of the Warr, which only can warrant it lawful, we all know is the necessary preservation of a Common-wealth in Peace, by repressing (or preventing) all Seditions, or Hostile attempts to the contrary; but as in other things it often happeneth, according to that saying [Finis non idem est artis & artificis] so here many times the warriour hath another end to himself far distant from that of Warr, and the more distant ever the worse; as on the contrary, the action is ever by so much the better, by how much the intention of the person hath a near affinity with, or a directer tendency unto that for which the thing it self was ordained.
2. Now the ends, which men desirous to follow the Warrs do usually propose to themselves in so doing, are especially one of these Three, Lucre, Honour, or to do their Countrey service; concerning which we are to enquire severally, whether or no, and how far forth, any of these may be a sufficient inducement to a Christian, or but morall man, to follow the Warrs, as his particular Calling, or Profession.
3. For Lucre first: He that hath a warrant otherwise to imploy himself as a Souldier, may doubtless lawfully both receive pay and require it; Iohn the Baptist allowed the Souldiers foreign, Luke 3. 14. And St. Paul thought it not reasonable, that any man should go to warfare at his own charges, 1 Cor. 9. 7. Nor so only, but he may also, in putting himself upon that imployment (being called thereunto) have an eye to his profit, and an actual intention. (if moderate and otherwise rightly qualified) of getting himself a livelyhood, yea and of raising himself a fortune (as we call it) by his service therein; even as men in the choice of other Professions, or undertaking Offices, usually do and so may do without sin; but to propose to himself Lucre, as the main end and scope of following the Warrs (as it is evident by their actions, that very many of our Common Souldiers do) is one of the most hateful and unrighteous things in the World: so far is it from being a sufficient inducement to any man to make that his Profession. How can it be imagined to be consistent with that Charity, Iustice, and Moderation, that should be in every Christian to set up a Trade of killing of Men for Money? The meer Mercenary Souldier therefore, or a Souldier of fortune (as we call him) I finde every where inveigh'd against; as one of the greatest Scourages or Plagues of Mankind; for such men never look at the Cause they engage for, whether it be right or wrong, but at the pay and prey; and therefore they take their best Markets, and care not whom they undo, kill and oppress, by Violence, Rapine, Murther, and Plunder, so they may but enrich themselves thereby, and can do it with safety: Nor will they stick, if there be an advantage to be made of it; and that they can spy a fit opportunity for it, either to betray their own party, or to revolt to the other side, or to do any other act, though never so base and dishonest, Nulla fides pietasque viris qui castra sequuntur.
4. Next the intuition of Honour and Glory to be acquired by worthy Actions in the Warrs, may be not only lawful, but commendable also and useful in a Souldier; and truly this of Glory is a more noble end, of a higher pitch, and more befitttng a Generous spirit by much, then that of Lucre is; both because Men of eminent Birth, and Place, and Parts, are aptest to be affected with it; whereas Gain worketh most upon the lower sort of Men, and also because it putteth Men upon more worthy Enterprizes, and such as may win Honour and Reputation; and restraineth them from those baser acts of Injustice, Cruelty, and Rapine, to which the desire of Gain usually prompteth the mercenary Man; but yet as to the warranting of the Souldier for making that his Profession, (which is the Point now in hand) this of Glory is of no importance, then was that of Gain; for the right end of Warr being a safe and honourable Peace, there is something common to both (consequential to the desire of Glory; as well as of Gain) so inconsistent with that end, that it setteth them at an equal, or not much unequal distance therefrom: For as he that aimeth to gain by the Warrs, cannot but desire the continuance of Warr, that so his hopes of gain may continue; so he that aimeth to get himself Glory by the Warrs, cannot but desire the continuance of Warr, that so the opportunities of encreasing his Glory may continue; for there is a Dropsie of vain-glory in the Ambitious, as well as of Avarice in the Covetous, as thirsty and unsatiable in the one, as in the other; whence it cometh to pass, that both the one and the other use their utmost wits and endeavours to find occasions to lengthen the Warrs, and to obstruct and retard (so much as lieth in them) the advices of Peace: Nay, let me add moreover, that in this respect at least (viz. as to the effectual hindring of Peace) that of Honour and Glory, is much the more dangerous end of the two; because this humour is aptest to seize upon the greatest persons, and such as by priviledge of their birth, eminency of their places, activeness of their spirits, glory of their former actions, or other like advantages, bear a great sway in Counsels, and are of some authority in the Armies: whereas the Peasantry, in whom most of the other humour (that of base Lucre) aboundeth, have neither the wit nor the power ordinarily to do much harm. It hath therefore been a constant observation in all times and places, that the embroyling most Common-wealths in Warrs, in the mean time, and working their ruin in the end, hath grown from the restlessness of some ambitious spirits, and their immoderate thirst after Honour and Glory:
—Patriam tamen obruit olim
Gloria paucorum, & laudis tituli que cupido:
Juvenal Sat. 10.
5. So that if there be any possibility of finding a person capable to take upon him the imployment of a Souldier, as his proper Profession, it must be among those that propose to themselves the same end therein, that is, or ought to be the end of Warr; that is to say, those that after an impartial search of their own hearts, can truly say (and not pretend it only) That their chiefest aim in applying themselves to the Warrs, is to do their King and Country service, in procuring or preserving the Peace thereof: which no man can truly say, but he that preferreth the publick Good, and the Peace of his Country, before all private interests. The tryal whereof is, if he take up Armes with this Resolution, and by his after carriage make it good, not to do any act, or enterprise any thing for his own benefit, glory, or safety that may hinder; nor to refuse any service or hazzard, that may probably promote the obtaining of that end, which Qualification supposed, I deny not but that a Man may find warrant to go on in the way of a Souldier as his proper Profession, and that in two Cases.
6. First, that which (in the nature of the (Imployment it self) is rather an Office then a Profession (such as we have already shewen the Soulders imployment to be) may yet become to the person so imployed, as his proper Profession, if he shall be appointed thereunto by lawful Authority; especially if it be done with a declared intention whether expresly or interpretatively declared) of continuing him for life, or for any long space in the same; and that the said imployment during such his continuance therein, shall require his personal attendance, either constantly or for the most part: As for example, a Lawyer by Profession and Practice, is by his Sovereign called to be a Iudge of either Bench, or a Baron of the Exchequer, the Office of a Iudge is now become his Profession, or particular Vocation, because it is supposed that he is to continue in that Office; and the execution of that Office will require his attendance thereupon, in the yearly Terms and Circuits: but if the King shall appoint a Serjeant or Counsellor at the Law, by his particular Commission to ride this Summers Circuit, into such and such Countries, and there to execute the Office of a Iudge, the Party so constituted and appointed hath by virtue of that Commission, full power to do the Office of Iudge in that Circuit, and is to be received and honoured with the title of Lord, and all other testimonies of honour and respect, in as much ample manner as other Iudges in their Circuits are; yet doth he not thereby come to be denominated a Iudge, as if that were his proper Profession, or ordinary Calling, as in the former Case; because he is impowered to execute the Office of a Iudge, but during the time of that Circuit only: Nor is his attendance upon that Office any longer required, or so much as allowed him. In like manner, if the King of England shall make choice of some person of Quality to be Governour of Dover Castle, or of Barwick, that Office then is as his Profession or particular Calling; because it is to be supposed, he is to continue in that imployment, and to attend the same, untill the Kings pleasure be further known therein: but if the King upon some suddain Insurrection and Invasion should raise an Army, and make choice of some person of like Quality to have the Conduct thereof, for the Suppressing or Repelling such Insurrection or Invasion, his Imployment in that service being but temporary and to determine, as soon as the business were ended, should not otherwise then in curtesie, denominate him a General; or at least not be esteemed as his permanent profession, but only as a transient Office: This is one Case.
7. The other Case (which is more pertinent to the business of these Letters) is of such as desire to imploy themselves in the exercise of Armes in Foreign Service, that they may attain to such knowledge or experience in the Art Military, as might the better enable them to do their King and Country Service, whensoever there should be need thereof; for since the Manegery of Warr, is long since grown into an Art, and that not to be learned from Books, or from private study; but to be acquired by much practice, and experience, and diligent observation: and the rather, for that the particular Rules of that Art, do not stand at such a certain stay, as those of most other Arts do, but are dayly altered and improved by new inventions: It is very necessary for every State to be well provided of a good number of such persons of their own Nation, as should be expert and skilful in that Art; least they should be forced, if an unexpected Warr should happen, to call in Foreigners for assistance, which is both dishonourable and dangerous: the necessity hereof too well appeareth by the evill consequents of the neglect of it in this Nation in these latter times, especially in the Reigns of the two last Kings, by reason of the long Peace; and (which commonly breedeth out of it, as the rust and canker thereof) tenderness of Education, and voluptuous living. The Nobility and Gentry of England in the generality of them, had so much degenerated from the Martial Prowess of their Ancestors renowned in all Histories, that in the beginning of these unnatural Warrs, there were very few to be found of our own Nobility and Gentry, fit to have command in an Army, or that knew any thing belonging to the Art of Warr; insomuch as use was made on both sides of Mercenary Men, and most of them Scots, who being for the most part bred up abroad (in France especially, a place of much action) had learned experience more then our English had in such matters, by which advantage they had so wound themselves into the chief places of Command, and had such an influence into the Councils of both sides, that the Warr was in a manner wholy ordered by their directions, witness the great power that Ruthen, Urrey, King, Meldram, &c. had in the Armies on either side.
8. The weightiness then of Princes Affairs, upon all emergent occasions rendring it necessary for them, not only to have power to command their Subjects of whatsoever Rank or Profession to serve as Souldiers in their Warrs; but also to provide aforehand for a supply of able men, both for places of Command, and to execute other parts of that service, which cannot be done, unless a considerable number of persons be trained up in the exercise of Armes, and bred Souldiers: It is consequently necessary, that some persons be, either by their Authority appointed, or at least by their permission allowed, to addict themselves to a Military course of life, as their proper Profession and Calling, which Authority or Permission from their Sovereign, will sufficiently warrant to their conscience the choice of that Profession; supposing (as now we do) that the intention be right, the person meetly qualified, and all other Cautions in respect of the matter, manner, circumstances and otherwise duly observed.
9. The necessity of learning this Art granted, there may sometimes follow a further necessity, viz. of learning it abroad, and after it is learned, of exercising it abroad, and in Foreign service, and that in these two Cases: First, when the Soldiers own Country, whereunto his service is principally, and in the first place due, hath either the happiness to be in a setled Peace and Freedome, under the Government of a lawful Sovereign; or the unhappiness to be in such servitude, through the prevalency of an Usurping Power, that no Resistance can be made there against; for in the former Case, there is no exercise at all of the Souldiers faculty in earnest; and of what little avail to the attaining of any solid knowledge, or experience in the Art Military, such superficial trainings, as were used (and those but very seldom neither) by the Lieutenants of the several Counties here in England, with the Country-Captains and Muster-Masters are (besides that our own reason will tell us) the Rawness and Unserviceableness of our Trained-bands in the beginning of the late Warrs did abundantly manifest: and in the latter Case, the Souldier if he will have Imployment at home, must either engage on the behalf of an unjust Power, or else run upon his own certain destruction to no purpose.
IV. Consideration of the condition of the Person.
1. THis must be considered too; for the different conditions of persons, may make a great difference in the lawfulness or unlawfulness of their actions, according to the old saying, which holdeth true in this sence also, no less then in that other in which it is commonly used (relating to Mens corrupt partialities) Duo cum faciunt idem, non est idem. In your Friends second Letter, I find a demand made (as in the way of Reply to some passage of your Answer to his first Letter) to this purpose; Suppose two great Princes (as France and Spain for instance) have had long Warrs together, and the justice of the Cause appear neither more nor less, on the one side, then the other, if in case a third Prince or State, out of a sincere desire to Establish the Peace of Christendome, after other offers and mediations for that purpose made in vain, might lawfully joyn in Armes with the one party to force the other to Peace, why a private person might not as lawfully (having the same intention) enter into Armes for the same purpose; and the reason of demand thereof is, because every Prince or State is (in relation to other Princes and States) but as one private man to another; for being called to the Regiment of his own people only, he is but as a private man in Aliena Republica.
2. But that there is a great difference between a Sovereign Prince and a private person in this affair, it cannot be denied; insomuch that I find in the very same passage (put in as it were by way of Objection) three very considerable differences. First, That Princes may, and sometimes are obliged by Articles and Covenants for the defence of their Allies to take up Armes, which cannot be the case of private Men. Secondly, That Princes may see cause to set in for their own safety and interest, least the prevailing party might grow too Potent, and so themselves might be oppressed by him. Thirdly, there is a greater probability in a Prince of compassing that Noble and Glorious end, The Peace of Christendome, then can be in a private Man. All these differences are allowed there as true; but yet excepted against, as not contributing any thing to the justice of the cause which is here the Question.
3. If these do not, yet a Fourth difference there is, that will (as I conceive) manifestly contribute thereunto, to wit, that Ius Belli, is Penes Principem solam: in the business of Warr, Princes have a judicial, private Men an executive power only; and he that hath no power but to execute the sentence of a Iudge, is bound to waite the Iudges sentence before he offer to act; otherwise he shall act beyond his lawful power, which is unjust: Not but that a Prince if he raise a Warr where he ought not, is unjust too; even as a Iudge is unjust, which pronounceth a wrong sentence: but herein is the difference between them for taking up of Armes. The Prince having jus agendi in that behalf, may do it justly, and he may do it unjustly; yet where he doth it unjustly, doth but abuti jure suo: but the private person, not having jus agendi, in that respect cannot (without the Authority of the Sovereign) do it otherwise then unjustly; because in so doing, he doth without leave uti jure alieno, which is alwayes unjust. It is one thing for a Man to use (whether well or ill) a power that of right belongeth to him, and another to assume a power that of right belongeth not to him; the one is not unjust, unless he abuse his Power; the other is if he use it at all.
4. Neither perhaps will the Reason alledged to the contrary (viz. that a Prince in point of justice and power is in Aliena republica but as a private person) bear so much weight as is laid upon it, if one Point be well considered, which I think will prove a truth, though it be very tenderly handled; otherwise it may prove very dangerous, both because it may seem a Paradox to those that have been little conversant in publique Affairs; as also, and especially, because it may, by racking it too high, be easily wrested to a mischievous construction, for the Patronage of any Tyrannical action; the point is this, that Iustitia politica; and Iustitia privata, have not in all the same adequate measure. Princes are bound to be just, as well as the meanest private men are, and obliged to keep faith both with Friends and Enemies, every whit as exactly and punctually, without equivocation, reservation, or other eluding devices, as they; of all this no man doubteth: but it is not therefore necessary, that the Rules of Iustice, whereby the Councils and Actions of Princes and States, in their mutual Relations are to be measured, should be precisely the same with those which measure the dealings of Private men one with another.
5. And the reason of the difference is evident; private Mens Controversies may be decided, and their Injuries repressed or punished, by the positive Laws of the State whereof they are Members; and consequently subject to be ordered in all their dealings by those Laws; which positive Laws (together with the Law of Nature, and the Divine Law, which are common to all Men) are the adequate Rule, whereby the Iustice of private persons, and of their actions is to be measured; but since Princes and States are not subject to any such positive Laws common to them both, as may determine their Differences and Controversies; The great necessity of Humane Affairs, hath (for the good of Mankind in the preservation of Peace) introduced by the common consent of Nations, another Law of larger extent, that which we peculiarly call Ius Gentium, or the Law of Nations (whereof that which we also call the Law of Armes▪ is one special part) by which the Law of Nations (together with the Law of Nature, and the Divine Law as aforesaid) the Iustice of Princes and States, and of their Actions, is as by the proper and adequate Rule thereof to be measured. Whence it cometh to pass, that sundry things are by the Rules of Politique Iustice allowed as lawful and just between Princes, which between private men, would by the rules of meer moral Iustice, be condemned (and that deservedly too) as unjust and unlawful: There are sundry Arcana Imperii, some arts and simulations for maintaining Intelligence abroad, for concealing and disguising Councils at home, in the Instructions of Embassadors and menaging of Embassies, in making Alliances and Confederacies, but especially in the persuance and effects of Warr, which seem much to swerve from the ordinary Precepts of morall Iustice; which yet (fide integrâ & citra dolum malum) are by the consent of Nations allowed to be used, and so must be, or else there could be no secure living in the World in any Society; that saying of his Atque ipsa utilitas justi prope mater & aequi, had somewhat of truth and reason in it.
6. The truth and reasonableness of what hath been said will appear (omitting many other) in these few Instances. First, When a Town is taken by the Enemy, by the Law of Nations, the spoil thereof falleth to the Conquerour, which if he give to the Souldiery to plunder (as usually is done) every Souldier thereby acquireth a just Right and Dominion in that which he can lay his hand on first, and take into his Possession. Secondly, It may sometimes concern a Prince or State in point of Honour or Safety to vindicate himself by Warr, for some wrong offered to his Merchants, or for some Rudeness or Incivilities done to his Embassador (for even these, in case Reparation be demanded, and denyed, have been ever held just causes of Warr; as Amphitruo in Plautus rendereth that as a sufficient reason of his Warr, Nimis ferociter legatos nostros increpant) in this case it is by the Law of Nations allowed him, not only to fight against the Prince himself, who yet only did the wrong, but to wast his Country, fire his Towns and Villaeges, and spoile thousands of his innocent Subjects of their fortunes and lives in persuance of his just revenge; but if a private Gentleman wronged by his Neighbour should in like manner, in revenge of that wrong, beat his Servants, vex his Tenants, and seek his or their undoing, the act were palpably most unchristian and unjust. Thirdly, Since potent Princes, have for the most part, great Ambitions (and Ambition is a boundless lust) it behoveth a Prince for his own safety, to have a watchful eye over the Motions and Designs of a potent Neighbour, almost as much as of a declared Enemy; and therefore wise Princes have been ever carefull by all just means to ballance their neighbour Princes and States, as near as they could; in such a proportion as might hinder the too much overgrowth of any one above the rest: In order whereunto it hath been held lawful for a Prince, laying aside the consideration of the cause, to joyn in Armes with the weaker, for his assistance against his Potent Adversary, who else were likely in a short time to swallow him up, whereby he should become formidable and dangerous, as well to himself, as to the other his neighbour Princes and States; upon which account alone, were there no other reason besides, it would be as just for all Christian Princes to compose their own quarrels, and to aid the Venetian, and Hungarian, Persian or Tartar against the Turk, as it is expedient and honourable for them so to do: but what is thus allowed just in the waging of Warr between Princes; if in a wager of Law a private person, should attempt the like, viz. to assist with his purse and pains, a Poor man against a Rich, without considering the equity of the cause; the act were (as in the former Instance) palpably unjust and unchristian: Instances might be produced many more to the same effect, were it needful: but these I think sufficiently evidence the truth of what I undertook to shew in this particular.
7. There are also sundry other circumstances considerable concerning the condition of the person, which may render the same undertaking unlawful to one, which yet may be lawful for another, or more or less expedient or inexpedient for one then for another, supposing both private persons and Subjects; as namely, whether he be a person of Honour and Estate, or a man of ordinary rank and fortune; whether a single man or Married? if Married; whether he have the consent of his Wife or no? and whether such consent were a free and rational consent in the Wife, arising from a Judgment convinced of the fitness of the undertaking, or rather wrung from her by the importunity of the Husband, and her facility in yielding to the potency of his desires therein? whether the necessity of his domestical Affairs, and Oeconomical Relations will brook his absence, for so long a time, as must be spent in that Imployment; or will not rather require his presence and care, for the menagery thereof in the mean time? and an hundred other like doubts and difficulties meet to be taken into deliberation, and unprejudicately weighed, against those other probabilities and inducements, which at first kindled and after fomented his desires, before he imbarque himself in that Imployment: and yet when all is done, it were safer for him (in my opinion) to forbear then to proceed in his intentions, unless he shall be assured, that he hath the free allowance of his Sovereign, thereunto either expressed (which would be the clearest warrant for his conscience) or at leastwise upon very pregnant grounds of probability presumed.