Five cases of conscience occasionally determined by a late learned hand.

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 say∣ing, 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 pas∣sage of your Answer to his first Let∣ter) to this purpose; Suppose two great Princes (as France and Spain for in∣stance) have had long Warrs toge∣ther, and the justice of the Cause ap∣pear 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 in∣to Armes for the same purpose; and the reason of demand thereof is, be∣cause every Prince or State is (in re∣lation 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 diffe∣rence between a Sovereign Prince and a private person in this affair, it can∣not 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 ob∣liged 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 Christen∣dome, 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 diffe∣rence there is, that will (as I con∣ceive)

manifestly contribute thereunto, to wit, that Ius Belli, is Penes Principem solam: in the business of Warr, Prin∣ces have a judicial, private Men an ex∣ecutive 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; other∣wise 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 dif∣ference between them for taking up of Armes. The Prince having jus agendi in that behalf, may do it just∣ly, 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 Rea∣son 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 Ene∣mies, every whit as exactly and punctu∣ally, without equivocation, reservati∣on, 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 ano∣ther.

5. And the reason of the diffe∣rence is evident; private Mens Con∣troversies may be decided, and their Injuries repressed or punished, by the positive Laws of the State whereof they are Members; and consequent∣ly subject to be ordered in all their dealings by those Laws; which po∣sitive 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 sub∣ject to any such positive Laws com∣mon to them both, as may deter∣mine their Differences and Contro∣versies; The great necessity of Hu∣mane 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 pe∣culiarly 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 Intelli∣gence abroad, for concealing and dis∣guising

Councils at home, in the In∣structions of Embassadors and mena∣ging of Embassies, in making Alli∣ances and Confederacies, but especi∣ally in the persuance and effects of Warr, which seem much to swerve from the ordinary Precepts of mo∣rall 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 ta∣ken 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 ac∣quireth 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 Ho∣nour or Safety to vindicate himself by Warr, for some wrong offered to his Merchants, or for some Rude∣ness or Incivilities done to his Em∣bassador (for even these, in case Repa∣ration 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 incre∣pant) 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 Villae∣ges, and spoile thousands of his inno∣cent 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 over∣growth

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 ac∣count alone, were there no other rea∣son 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 a∣gainst the Turk, as it is expedient and honourable for them so to do: but what is thus allowed just in the wa∣ging 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 pro∣duced many more to the same effect, were it needful: but these I think suf∣ficiently evidence the truth of what I undertook to shew in this parti∣cular.

7. There are also sundry other cir∣cumstances 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 con∣vinced of the fitness of the undertaking, or rather wrung from her by the im∣portunity of the Husband, and her fa∣cility in yielding to the potency of his desires therein? whether the necessity of his domestical Affairs, and Oecono∣mical 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 de∣liberation, 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, there∣unto either expressed (which would be the clearest warrant for his con∣science) or at leastwise upon very pregnant grounds of probability pre∣sumed.