Five Cases of Conscience by A Learned Hand London Printed for Henry Brome 1666. FIVE CASES OF Conscience Occasionally Determined BY A late Learned Hand HEB. xi 4. He being Dead yet speaketh LONDON Printed by E. C. for Henry Brome at the Gun in Ivy-lane 1666. A LETTER from a Friend concerning the ensuing Cases SIR HAving perused the Papers you sent me I can safely vouch them for genuine and not in the least Spurious by that resemblance they wear of their Reverend Author and therefore you need not fear to bring them to the Public test and let them look the Sun in the face 'T is true their first Commission was but short and long since expired they being designed only to visit and respectively satisfy some private Friends yet I cannot see what injury you will offer to his sacred ashes if by renewing that you send them on a little farther Embassy for the common good Indeed the least remains of so matchless a Champion so invincible an Advocate in Foro Theologico like the filings and fragments of Gold ought not to be lost and pity the world was not worthy many more of his learned Labours But Praestat de Carthagine racere quam pauca dicere far be it from me to pinion the wings of his fame with any rude Letters of Commendation or by way of precarious Pedantry to court any man into a belief of his worth since that were to attempt Iliads after Homer and spoil a piece done already to the life by his own Pencil the works whereof do sufficiently praise him in the gates All I aim at is to commend and promote your pious intention to give the World security by making these Papers public that they shall never hereafter stand in need of any other hand to snatch them out of the fire a doom you say once written upon them Nor do I less approve your ingenuous prudence in determining to prefix no Name it being as laudable not to speak all the Truth sometimes as to forbear telling a Lie for advantage 'T is I confess the mode of late to hang Jewels of Gold in a Swine's snout I mean to stamp every impertinent Pamphlet with some great Name or voluminous Title to make it vend the better Laudat venales qui vult extrudere merces at which the guled Reader repenting his prodigality of time and patience is forced to cry out all along Beaucoup de bruit peu de fruit and in the end sums up its just character in a few words Nil nisi magni nominis umbra But yours is the only method to deal with wise and rational men who are not so easily taken with Chaff the multitude or greatness of words and names as with the true weight and worth of things Yet let me tell you that whoever is not a mere stranger to your learned Authors former Tractates must needs spell his name in every page of this without any other Monitor I have no farther trouble to give you unless I should bespeak your vigilance over the Press which by her daily teeming and inexpertness or at least negligence of the Midwife is went of late to spoil good births with monstrous deformities and unpardonable Errata so you will avoid a double guilt contracted by some without fear or wit of abusing your critical Reader on the one hand and your most judiciously exact Writer on the other and if that may contribute any thing more very much gratify the most unworthy of his Admirers and Your Friends etc. The Five Cases Determined 1. Of Marrying with a Recusant pag. 1 2. Of Unlawful Love 15 3. Of a Military Life 57 4. Of Scandal 109 5. Of a Bond taken in the King's Name 120 The CASE of Marrying with a Recusant SIR YOurs of july the 2 d. I yesterday july the 6 th' received In Answer to the Contents whereof desiring that my Services may withal be most humbly presented to my very much Honoured Lord I return you what my present thoughts are concerning the particulars therein proposed First For Marrying a Daughter to a Professed Papist considered in Thesi and as to the point of Lawfulness only I am so far from thinking the thing in itself to be simply and toto genere unlawful that I dare not condemn the Marriage of a Christian with a Pagan much less with any other Christian of how different Persuasion soever as simply evil and unlawful inasmuch as there be Causes imaginable wherein it may seem not only Lawful but Expedient also and as the exigence of Circumstances may be supposed little less than necessary so to Intermarry But since things lawful in the General and in Thesi may become by reason of their inexpediency unlawful pro hic & nunc and in Hypothesi to particular persons and that the expediency or inexpediency of any action to be done is to be measured by the Worthiness of the end the conjuncture of present Circumstances and the probability of good or evil consequents and effects prudentially laid together and weighed one against another I conceive it altogether unsafe for a Conscientious Person especially in a business of so great concernment as the Marrying of a Child to proceed upon the General lawfulness of the thing without due consideration of Circumstances and other requisits for the warranting of particular Actions Now as for the Marriage of a Daughter with one of so different Persuasion in point of Religion as that they cannot join together in the same way of God's worship which is the case of a Protestant and a Papist it is very rare to find such a concurrence of Circumstances as that a Man can thence be clearly satisfied in his Judgement without just cause of doubting the contrary that it can be expedient to conclude upon such a Marriage and how dangerous a thing it is to do any thing with a doubting conscience we may learn from Rom. 14. 13. For the evil consequents probably to ensue upon such Marriages are so many and great that the conveniences which men may promise to themselves from the same if they should answer expectation as seldom they do to the full laid in an equal balance thereagainst would not turn the scale and in one respect the danger is greater to marry with a Papist then with one of a worse Religion for that the main principle of his Religion as a Papist is more destructive of the comfort of a Conjugal Society then are the Principles of most Heretics yea then those of Pagans or Atheists for holding that there is no Salvability but in the Church and that none is in the Church but such as acknowledge Subjection to the Sea of Rome it is not possible but that the Husband must needs conclude his Wife to be in the state of Damnation so long as she continueth Protestant whence one of these two great inconveniences will unavoidably follow that either he will use all endeavours engines and artifices to draw her to the Church of Rome as indeed who can blame him to bring his Wife into a capacity of everlasting salvation the restless importunity whereof together with the ill advantages they of that party can make from the sad Confusions that are amongst us in these times it will be very hard for one of the weaker sex perpetually to resist or else in case she stand firm in her Religion against all Assaults and Attempts to the contrary whatsoever he may be towards her in outward carriage he cannot but in his inmost thoughts pass judgement upon her as an obstinate and desperate Heretic and so living and dying an accursed and damned Creature These are sad things both and it is not conceivable how a Woman so matched should live with any comfort or ever hope to see a good day wherein she shall not either be tempted from her Religion or censured for it what assurance can she have of his good affections towards her who is bound not to permit any better opinion of her then of a Reprobate and Castaway It is possible there may be so much good nature in the Husband as to take off somewhat from that rigidness which otherwise the Principles of his Religion would bind him to or so much discretion sweetness and obligingness in the Wife's demeanour towards him as to preserve a good measure of Conjugal Affection between them notwithstanding their different persuasions This I say is possible and where it happeneth so to be it rendereth the condition of the Parties so much the less uncomfortable and that is the utmost of the happiness that is to be hoped for from such Marriages and I think there cannot be produced many examples thereof yet even there there cannot be that cordial Affection and fullness of Complacency wherein yet the chiefest happiness of Conjugal Society consisteth that would be if the same Parties supposed to be of the same Qualifications otherwise were also of the same Religion I omit other oeconomical differences that may and very frequently do occasionally arise betwixt Husband and Wife from this difference in Religion as concerning the Entertainment of Friends the choice of Servants the education of Children very considerable things all besides sundry others perhaps of less moment yet such as are apt to breed Discontents and Jealousies and sometimes break out into great Distempers in the Family Such Marriages therefore I should utterly dissuade especially in the Nobility Gentry and Commonalty where there is choice enough otherwise to be had of Persons of equal Degree Estate and Education of the same Religion to match withal Kings and Princes for reasons of State and because there is little choice of Persons of equal Dignity with themselves are therefore oftentimes by a kind of Necessity put upon such Marriages yet even there where they are certainly the most excusable it hath been observed that such Marriages have proved for the most part unfortunate The other Particular proposed in your Letter is concerning the Marriage of a Daughter to one that Professeth the Protestant Religion but having had Popish Parents may be suspected though he deny it to be that way inclined The resolution whereof as of most other Cases and Practical Questions will depend very much upon the consideration of Circumstances whereunto being altogether a stanger I am less able to give Judgement in the Case with any certainty only in order to the resolution of the Question these to my understanding seem to be the most proper and important Inquiries First Whether the Parents of the young Person be living or no one or both if both be dead the temptations from them which in such Cases are wont to prevail very much are by their Death clearly superseded and then the danger is by so much less but if either be living there can be little security of the Sons continuance in the Protestants belief notwithstanding his present profession thereof when he shall be assaulted with the whole authority of them to whom he oweth reverence Secondly With what degree of confidence and with what kind of asseverations he professeth the one and denieth the other Religion for although they that out of design put on a counterfeit vizor use all the art they can to dissemble it yet very seldom can it be done so cunningly waringly and constantly but that at some time or other the dissimulation will unawares bewray itself to the eye of a curious observer Thirdly What measure of understanding the young Person who is you say of great Abilities for his Age hath in the Fundamental Articles of the Christian Religion those I mean wherein the English and Romish Churches are at agreement for in those the substance of Christianity consisteth he that rightly understands those Catholic Truths taught in the Catechisms of both Churches and concerning which all Christendom in a manner are at a perfect accord and then will but suffer himself to consider that the Church of England doth not impose upon the judgements and consciences of her Members any thing to be believed or received as of necessity to Salvation than what is truly Catholic and by her Adversaries confessed so to be and consequently that the difference betwixt her and the Romish Party is wholly about those Additionals or Superstructures which they of the Roman faith require to be believed and received with like necessity as the former but appear to us of this Church respectively either evidently false or of doubtful truth or not of absolute necessity to be believed I say whosoever well considereth this may rest satisfied in his judgement and conscience that the Faith taught and professed in the Church of England is a plain and safe way to lead a Christian Believer to Eternal Salvation if he withal lead his life and conversation answerable thereunto To the last particular in your Letter all the return I have to make is no more but an humble acknowledgement and sense of his Lordship's noble favours towards me in entertaining an opinion of me more suitable to his own goodness and ingenuity then to my merit I know not nor desire to know of any occasions likely to draw me into those parts so distant from me being grown into years and infirmities that render me very unfit for long Journeys unless the business of my Son's Marriage which occasioned my late Journey to London require a second thither in Michaelmass Term. But I am so sensible both of the trouble and charge of such Journeys besides some inconveniences to my affairs at home whilst I am long absent that I will avoid it unless there be no other remedy I shall not willingly decline any employment within my low and narrow sphere both of outward condition and parts wherein my service may be any ways useful or but acceptable to that noble and excellent Person but truly Sir I conceive there will be little need of my further endeavours as to that particular expressed in yours whether what I have written now give satisfaction or not there are persons nearer hand whom I know to be much fitter for an employment of that nature than myself who have ever studied Peace more than Controversies and namely one at the next door to Hatton House whose sufficiency and readiness in that kind is well know to Mr. Geofery Palmer Sir I wish you happiness desire your prayers and rest july 7. 1656. Your faithful and humble Servant The CASE of UNLAWFUL LOVE TWo Gentlemen who were very good Friends and both of them Married used to converse together familiarly one of these took a special liking in the company and conversation of the others Wife and she answerably in his which afterwards proceeded to some degree of Love which though ever restrained and preserved without any violation of Chastity grew yet in the end to this issue that they mutually vowed either to other that if happily either of them should at any time be freed from the Bond of Matrimony either he by the death of his Wife or she by the death of her Husband that party so freed should continue afterwards unmarried and stay for the other till the other should be freed also though it were during life Now so it is that this Gentlewoman's Husband died and her affections and resolution so altered that gladly she would Marry if she might be released of the Engagement of that Vow or persuaded of the unlawfulness or nullity thereof Concerning the present Case as it is propounded sundry Points are needful to be resolved that so we give a right judgement de praeterito of what is already done for the time past in respect of the Gentlewoman's former promise and sound direction also de futuro which is further to be done for the time to come in respect of her present distresses Point I. § 1. First of all It is considerable whether the promise made by the Gentlewoman and her friend were properly a Vow or no so it is called in the proposal of the present Case and that agreeable to the common use of speech with us here in England who extend the word Vow very far neither shall I make scruple in the ensuing Discourse sometimes to call it so for Loquendum ut Vulgus But to speak properly a Vow is a word of a narrower extent than a Promise every Vow being indeed a Promise but not every Promise necessarily a Vow a Votum soli Deo fit sed Promissio potest fieri etiam Homini Acquit 2 2. q. 88 5. ad 3. Promises may be made indifferently either to God or Men but Promises made to Men are no Vows wherefore it is usually inserted into the definition of a Vow as a condition b Promissio Deo facta est essentia v●ti Ibid. essentially requisite thereunto that it be made unto God alone insomuch as to make a Vow to any Creature is interpretative to exalt the Creature into the place of God and so to make it an Idol which is clear not only from the express c Psal. 76. 11. precept of God and the constant d Numb 21. 2. Judg. 11. 30. 1 Sam. 11. 25. examples of godly men and the usual e Judg. 11. 36. Psal. 56. 12. phrases of the Holy Ghost in the Scriptures but also from the universal consent of all learned men both Divines and others and even of f Sponsio quâ ●oliga●nur Deo Cic. 2. Leg. Heathens also This Gentlewoman's promise then being made to the Gentleman her Friend alone as was his also to her and neither of both to God is therefore to be taken for a mere Promise but no Vow § 2. If for more confirmation thereof she bound herself also by Oath as it is not unlike yet is it no more for all that but a mere promise still and not a Vow for albeit the very using of an Oath be a calling in of God into a business and the person that taketh an Oath doth thereby set himself in the presence of God yet an Oath calleth him in only to be a a jurare nihil est aliud quam Deum Testem invocare Acquit 2. 2. qu. 89. 1. ex Aug. de ver Apost. Serm. R. 28. quod affirmas si D●● Testern promiseris id tenendum est Cic. 3. de Offic. witness without any intent to make him a party to the business whereas in a Vow he is made a party and not only a witness whereunto agree those forms so frequent in holy Scripture in Oaths both assertory and stipulatory b Gen. 31. 50. Judg. 11. 10. Mal. 2. 14. The Lord be witness between us c Rom. 1. 9 1 Thess. 1. 5. God is my witness d 1 Cor. 1. 3. Phil. 1. 28. I take God to Record and the like for even as when a promise is made unto God whereunto for the more solemnity the presence of some men is required as witnesses such a Promise is to be held for a Vow because it is made to God alone although in the presence of Men So on the other side when a Promise is made unto some Man whereunto for the more assurance the presence of God is required as a witness such a Promise is not to be held for a Vow because it is made unto Man alone although in the presence of God § 3. Nay further if the Gentlewoman when she thus engaged herself did use these very words I VOW TO GOD or words to that effect as we know is often done in solemn Promises between Man and Man yet neither is that sufficient to make it properly a Vow for to judge rightly when Question is made concerning any particular promise whether it be a Vow yea or no we are not to be guided so much by the forms of speech which are subject to change impropriety and many defects as by the true intention and purpose of the parties especially the Promiser Now what was the whole intent and purpose of these Parties when they mutually bound themselves in such sort as in the Case propounded is laid down no reasonable man can be ignorant even this and no other to give as good assurance as they could devise either to other and to receive the like assurance again that the thing by them agreed on and promised should be faithfully performed and if either Oaths or Protestations were also used by way of Confirmation they are all in common intendment to be taken as tending to the self same purpose without looking at any further thing and clearly where the Promiser hath no intention to bind himself to God but to Man only the Promise so made is no Vow whatsoever formality of words may be used in the making of it § 4. Neither is the examination of this Point a curiosity either in it self fruitless or impertinent to the Case in hand for albeit in that which seemeth to be the very main point of all viz. the power of binding the Conscience there be no material difference between a Vow and an ordinary Promise a lawful Promise no less binding unto performance than a lawful Vow and an unlawful Vow no more binding than an unlawful Promise yet there is some difference between them and that of some importance too in respect of the relaxation of that Bond for since it belongeth to him to whom a bond is made to grant a release thereof It belongeth therefore to God alone to release the obligation of a Vow and no man hath power so to do because the Vower by his Vow bindeth himself to God not to Man whereas the obligation of a mere Promise wherein the Promiser bindeth himself but to some Man may be released by that Man and a release from him is to the conscience of the Promiser a sufficient discharge from the said obligation which Consideration of what use it will be in the present Case will in the due place further appear In the mean time we have evidently proved that this Gentlewoman bound herself by Promise only and not by Vow Point II. § 5. We are next to inquire concerning the validity thereof whether or no the Gentlewoman a Rom. 7. 2. having an Husband at that time were so disabled in that respect from making such a promise that the promise then made by her without the Husband's consent was utterly void from the very beginning For the Wife is under b Rom. 7. 2. the Law and c 1 Cor. 7. 4. under the power of her Husband and so is not sui juris nor can bind herself by Vow Oath Promise or otherwise without the privity and consent of her Husband which consent we may presume this Gentlewoman never had the promise being of that nature that it had been not only immodesty but even madness at all to have sought it And it is certain from the d Numb 30. 3. Law of God by Moses to the equity whereof Christians are still bound because it 's founded upon right Reason and the light of Nature that every Vow and Promise made by a person that of right hath not power to make it is de jure nullum altogether void from the first instant and bindeth the Party no more than if it never had been made § 6. If any Scruple shall arise from this Consideration that albeit the promise made by the Wife in her Husband's life time bind her not without his consent so long as he liveth because she is all that while under his power vet after that she is loosed from the law of her Husband by his death it shall thenceforth bind her because she than becometh sui juris I say this maketh no difference at all in the Case for this is a general Rule that what b Quod initio vitiosum est non potest tractu temporis convalescere l. 29. F. de Diu. Reg. ju act soever had a nullity in it at the first when it was done cannot by any succeeding tract of time grow to be of force As if a young Scholar shall be instituted to a Benefice being not of lawful years or a young Heir make a sale of his Lands during minority the institution and the sale as they were both void at the beginning so they shall continue void as well after the Clerk is of lawful years and the Heir at full age as before so that to judge of the validity of any Vow Promise or Covenant respect must be had to c In stipulationibus id tempus spectatur quo cantrabimus L. 18. F. eodem that very time wherein it was made and to the present condition of the person at that time and not to any time or condition before or after If then there were indeed a nullity in this Gentlewoman's Vow at the time when she made it there is a nullity in it still and if it were indeed of no force to bind her then neither is it of any force to bind her now § 7. But after due pondering of the matter I rather think that there was not a nullity in the promise at the first neither supposing it had been rightly qualified in other respects was it void upon this ground because although she were not sui juris absolute it is sufficient yet that she was so quantum ad hoc For a person that is under the power of another hath yet power of himself and so is sui juris to dispose of all such things as by the free disposal whereof the proper right of him under whose power he is is no way prejudiced but in whatsoever may be prejudicial to the other in any of his Rights he is juris alieni neither may dispose thereof without the others consent and if such a person shall make a vow or other promise concerning any of those things wherein he is sui juris such vow or promise shall stand good and is not void though possibly it may be vicious in other respects from the inability of the person that maketh it As for example if a Servant shall promise to his own Father to work with him a day or two in Harvest this promise unless his Master consent thereunto shall be void because the Master hath a right in the Servants work to which right it would be prejudicial if the Servant should dispose thereof after his own pleasure but if such a Servant shall promise unto his needy Father to relieve him from time to time with a third or fourth part of all such wages as he shall receive for his service this promise shall be good of itself neither shall the Master's consent be requisite to make it so because the Master hath no Right at at all in the Servants wages wherein to be prejudiced by the Servants disposing thereof according to his own mind Now forasmuch as the Husband's right and power over the Wife ceaseth together with his life as the Apostle a Rom. 7. 2 3. expressly teacheth and so cannot be prejudiced by any act of the Wife done after his Decease It is manifest that the Wife is sui juris to make a vow or promise during her Husband's life time concerning something to be done after his decease in case she overlive him because his right will be expired before the performance of the said vow or promise be due as to give instance in a Case not much unlike to this in question A Wife estated upon her Marriage in a jointure or Annuity for her life of an 100 l. per annum maketh a promise in her Husband's life time to one of her younger Brothers that hath but short Means to allow him thence forward out of the said Estate 10 l. yearly toward his better Maintenance this promise is void unless the Husband consent because the performance thereof would prejudice him in that right which he hath during his own life in the Revenue of all the Lands and Annuities estated upon the Wife in Reversion but if such a Wife shall promise to her said Brother to allow him the said yearly sum of 10 l. after the decease of her Husband in case she survive him this promise is good though made by the Wife in her Husband's life time and without his consent because the Husband's right being to cease before the Promise is to be performed cannot be prejudiced by the performance thereof And this I find agreeable to the best Casuists whose peremptory opinion it is that b Vot● uxorum vel s●rv●rum exequenda illo tempore quo sui juris vel domini non possunt 〈…〉 65. & alios Husbands and Masters cannot disannul such Vows as their Wives and Servants make concerning things to be performed at such times as they shall be from under their power Which position if it be true and I yet see no reason why it should not then doubtless this Gentlewoman's Vow made to her friend though in the life time and without the consent of her Husband was not originally void from the inability to make it upon this respect that she was not sui juris so to do Point III. § 8. But though I dare not say neither do I think that there was a nullity in it in respect of the person to make it void that way yet it cannot be denied but there was much obliquity in it in respect of the matter to make it otherwise utterly unlawful in which Point much need not be said because the truth thereof will soon appear for there was in it manifestly a threefold obliquity and thereby also a breach of three several Commandments The first obliquity was in respect of the unlawful affection from which it proceeded which being placed upon another than the Husband and that in such a high degree as to produce a promise of this kind must needs be vicious both for the object and for the measure and such inordinate affection by the Analogy of our Saviour's a Mat. 5. 28. expression of the Law is a violation of the Chastity of the heart and so a breach of the Seventh Commandment The Second obliquity was the want of that true conjugal love which ought to be between Husband and Wife who ought to have a mutual b Prov. 5. 18. Eccles. 9 9 complacency and delight the one in the other and to be c Prov. 5. 19 satisfied at all times with the Love Comfort and Society of the one of the other which Love if it had been so throughly rooted and seated in the Gentlewoman's heart as it ought to have been would have crushed all motions of unlawful affection towards a Stranger in the shell long before they could grow to such strong Resolutions as by the making of this vow it appeareth they did for it is not to be imagined that such a vow as this could be made and really intended to be performed but we must needs suppose in the parties so vowing a kind of weariness at the least if not rather some inward loathing of the present Yoke which being contrary to that honour thst Married persons owe to their yoke fellows is so a breach of the Fifth Commandment A Third obliquity there was also as a breach of the Tenth Commandment against those express words Thou shalt not covet thy Neighbour's Wife every Man and Woman being to content themselves with that lot which by God's Providence hath befallen them as in all other things so especially in that which is of the greatest weight the lot of Marriage without coveting or lusting after that which it hath pleased the wisdom of God already to dispose upon another this Gentlewoman's promise then being such as if it should be brought to an impartial Trial before that Tribunal which God hath erected in every one's conscience and according to the tenor of that Divine Law whereof no Christian should be ignorant could not be reasonably acquitted from any one of these sinful Obliquities but not possibly from them all we may conclude to have been an Act utterly unlawful Point IU. § 9 But because a Man may contract an Obligation by an act not free from Obliquity as the saying in such Cases is Fieri non debet factum valet and we have a Ruled case for it in the Covenant which the Princes of Israel made with the Gibeonites which though b Josh. 9 14 etc. sinfully made at the first was c Ibid. ver 19 2 Sam. 21. 1 2. necessarily to be kept afterwards We are therefore to inquire into a Fourth Point Whether the Gentlewoman having de facto bound herself by such an unlawful promise be still by virtue of the said promise bound in conscience to the performance thereof or not To answer directly to the Point I take it she is not bound thereunto for that saying Fieri non debet factum valet hath place only there where the obliquity that maketh the act unlawful may be severed from the substance of the matter about which the act is conversant as when a Man voweth to do something which is not in itself and for the substance of the matter simply unlawful to be done but yet voweth it either rashly and without due advisement or for some indirect and unwarrantable end or upon flight and insufficient inducements or the like any of these Obliquities are enough to make the vow unlawful in respect of the act of vowing yet because these Obliquities do not necessarily pass upon the matter itself or the thing Vowed but may be severed from it therefore though the act of vowing were sinful the Vow itself for all that may stand good and bind the Party to performance but where the sinful obliquity passeth upon the substance of the matter or adhereth inseparably thereunto there not only the act of vowing is sinful but the performance also becometh unlowful In which Cases those other sayings ought rather to have place juram ent●●● non debet esse vinculum iniquitatis in malis promissis rescinde fidem in turpi vot● muta decrètum etc. § 10. If it shall be said that this difference being admitted will nothing avail the Gentlewoman in our present Case to free her from the obligation of her said promise because here the matter of promise seemeth not to be in it self unlawful especially on her part for if the Gentleman her Friend were presently free from the bond of Matrimony by the death of his Wife as the Gentlewoman now is by the death of her Husband they might perform what they had promised either to other by joining themselves in Matrimony and that without sin which is an argument that the sinful obliquity was only in the act of promising which therefore they ought to repent of but doth not cleave to the matter of the promise which therefore they ought not to violate To this I answer what in my opinion is true That if both the Parties were now actually free from the Marriage bond they not only lawfully might but were in conscience bound unless some other lawful impediment should hinder to join themselves together in Matrimony because none of the forementioned Obliquities which made the former act of promising unlawful would fall upon the after act of Marriage to make it unlawful But that Allegation is not direct to the Point in hand nor to the Case as it is propounded for it may be observed from the very from of the proposal that the matter of the promise wherein the Parties interchangeably bound themselves was not to Marry together when they should be both free upon which false ground the Objection runneth that was indeed the thing they aimed at therein but the end is one thing and the matter another but the very matter of the promise was the continuance of their mutual affection either to other with a resolution to stay the one for the other when either Party should happen to be free from the bond of the present Matrimony till the other should be also free The continuance of which affection and resolution will upon examination be found subject to all or some of the three Obliquities aforesaid and therefore as such an affection and resolution could not be entertained at the first without sin so neither can they be now continued in without sin for so long as they continue the first of the said Obliquities remaineth still both on his part and hers the second indeed by the death of the Husband is ceased on her part but remaineth still on his and the third contrarily being on his part ceased remaineth still on hers as will evidently appear to the understanding of any Man that shall take the pains to examine it § 11. Yea and it is further to be considered that the continuance of such an affection and resolution may be likely to expose as well the one as the other to the assault of more strong and dangerous temptations now since the Husband's death than before The danger on the Gentleman's part this least by how much he is now by the Husband death put into a nearer possibility of enjoying his unlawful hopes he should grow into so much the deeper loathing of his own bed and and so much the earnester longing that that which is now the only obstacle to the fruition of his desires were removed of which thoughts who can tell how fearful the issues might be the sly Enemy being most ready at all times to practise upon the corruption that is in the naughty heart of Man but especially having a mighty advantage against him when he hath got his conscience as it were in a snare by the engagement of some vow promise or settled resolution And then on the Gentlewoman's part the danger this least having by her own voluntary act debarred herself of that which is the only allowed remedy namely Marriage she should by the just judgement of God be left to the rage of the Disease of burning Lusts for upon what sound warrant can she be confident or with what Reason expect that God should either preserve her from or assist her against temptations in that kind though she should seek it of him with Fasting and Prayers and Tears so long as she tempceth Him by persisting in a wilful obstinacy against that means of Remedy which He hath appointed Indeed where the hand of God himself hath prevented the use of the Remedy as if the Husband should be long detained in a foreign Land or held in close Prison or taken with a dead Palsy or some other bodily impotence or the like there the Wife might comfortably implore God's assistance to preserve her from being overcome by carnal temptations and assuredly rest upon it by faith if she be not wanting to herself in putting to her own utmost endeavours because she hath a Promise to rest upon for that purpose and God who is faithful in all his Promises is also faithful in this of not suffering his Servants to be tempted beyond their strength but for the Wife by some inconsiderate act of her own wherein she wilfully and obstinately persisteth to refuse the appointed means and yet to expect God's assistance nevertheless for which she hath no Promise is a fear full tempting of God and it is but a just thing with God and she suffereth it worthily for her presumption if she be left to herself and so wrestle with the temptation by her own strength and so be overcome thereby For God who hath after a sort tied himself by his free and gracious Promise to protect us in Via Regia so long as we walk in the ordinary known way that he hath appointed for us hath no where bound himself to vouchsafe us the like powerful protection Extra viam Regiam if we refuse that high way to walk in by-paths of our own choosing which present dangers on both sides and the former Reasons laid together do sufficiently prove that the Gentlewoman is not at all bound to perform her said unlawful Promise Point V. v. 12. Hitherto we have proceeded in genere judiciali by considering of the nature and validity lawfulness and obligation of the Promise for the time past Now we are to deal in genere deliberativo and to consider what in Christian wisdom is meetest to be farther done for the better both quieting and regulating of the Conscience for the time to come wherein submitting to Men of better judgements and experience I give my advice as followeth viz. First That the Gentlewoman out of the serious consideration of the Promises be brought to a through feeling of the grievousness of those sins which she hath committed against God and wherein she hath so long continued that so she may not only be humbled in his sight with true contrition of heart and remorse for the same proportionably to the greatness thereof but also be provoked to a proportionable measure of thankfulness unto him for his gracious goodness in restraining her unlawful affections from breaking out into actual uncleanness and preserving her when she had run out so far in an evil way from rushing into more desperate extremities for Erranti nullus terminus as a stone that tumbleth down a steep hill so Man's corruption when it is once set on going hath no stay of self till it come to the bottom of Hell unless the Lord lay a stop in the way and it is to be acknowledged a blessed act of Gods mercimerciful Providence when we have let lose the reins to our own lusts in any kind if they be bridled from running headlong into tall excess of wickedness great sins require more than ordinary Repentance and great mercies more than ordinary Thankfulness § 13. Secondly That having thus humbled herself before God by inward Contrition she also make an outward free Confession of her said sins to him whom God hath delegated a Ministerial Power to remit sins that she may receive Comfort and Absolution from his mouth I mean the Priest and this I think meetest to be done to the Bishop of the Diocese with one or more of his Presbytery such as he shall think good to take to him to assist him or else to some other by his appointment because the Bishop is the chief Pastor to whom the care of Souls most immediately belongeth within his own Diocese besides that both the quality of the person if she be of eminent Place and Rank and the weightiness of the case make it so much the more proper for his cognisance But howsoever it would be done to a Man of approved wisdom and such an one as will be both compassionate and secret wherein the more freely she shall make confession of her said sins and the more cheerfully she shall subject herself to perform such further acts whether of Humiliation or Charity as the Bishop or Priest shall advise to be done in testimony of her unfeigned Repentance the more sound comfort undoubtedly with the sentence of Absolution bring unto the Soul § 14. This done than thirdly that she endeavour by all fair means that the Gentleman also her friend and partner in the aforesaid Promise may be brought to the like sight and acknowledgement of the great sins that were enwrapped in that act and to a true persuasion withal that so long as he continueth in the former unlawful affection and resolution he is not only still under the guilt of those sins but also in near danger without God's great mercy preventing it of falling into other and greater sins for which purpose it will be expedient that he be truly and effectually dealt withal yet with as much lenity as the state of his Soul will suffer and with all possible secrecy and that by some such person especially as he holdeth a reverend opinion of both for Learning and Piety and to procure that this be done the Gentlewoman ought to take it into her own especially care which it will concern her to do not only in Christian Charity for the good of his Soul but in Christian wisdom also for her own future benefit and security § 15. For when he shall be once throughly convinced in his judgement and conscience of the unlawfulness of the Promise made between them and of the sinful inconveniences that attend the continued purpose of fulfilling it there is a fair way open for that which is next and fourthly to be done viz. That he be then earnestly moved for his Relaxation of the said Promise to the Gentlewoman which being it was but a mere Promise and no Vow as in the first Point hath already been showed he hath in himself a full power to make and this also to be done in the presence of such Persons as they shall make choice of betwixt themselves to be witnesses of the said Release for although the Promise being utterly unlawful hath no power to bind and so there needeth no Release as of absolute necessity in regard of the thing itself yet such Release may be very behooveful in regard of the Gentlewoman's person and for the quieting of her conscience in case there should remain any fears or scruples behind lest perhaps her promise should still bind her for as Satan laboureth to benumb the conscience with security to make men bold to commit sins without scruple till he has drawn them into the snare so when he seeth them offer to get out of the snare again by Repentance he is very cunning to inject needless Scruples and Fears if possibly he can to hold them in by means thereof wherefore I hold it very expedient that such a Release if it may be obtained be not neglected for thereby the binding power of the Promise though we should suppose it lawful should be quite taken away so as there need no scruple to remain Abundans Cautela non nocet is a safe Aphorism as wary men when they pay moneys besides seeing the Book crossed will crave to have an Aquittance So it may be some satisfaction to the Gentlewoman's mind to have a solemn Release before witness which say it should be more than needeth yet can do no harm howsoever § 16. Fifthly that the Gentlewoman all the while before and so ever after that time only excepted when the Relaxation should be made for than it is requisite she should be personally present carefully avoid the company of that Gentleman and he likewise hers so far as conveniently may be but at leastwise by no means converse together with any familiarity especially in private lest the former unlawful affection should rekindle in either Party and so the disease after some measure of cure grow to a relapses which many times proves more dangerous than the first malady for commonly when the unclean spirit is ejected by Repentance if once he make himself master of the heart again as he will attempt it and without a good watch haply effect it he will be sure at the reentry to come with a new strength and that sevenfold to what he had before and needs must the end of that man be worse than the beginning she must therefore resolve to shun all likely occasions of falling again into the same snare so far as the quality of her person and condition and the common affairs of life will permit And she had need also to use her best care and diligence praying to God daily for Grace to strengthen her thereunto to withstand all wicked temptations of the flesh that she be no more foiled thereby neither entangled again in such sinful inconveniences as by God's mercy she shall be now freed from § 17. If in these Directions I be thought to deal with too much rigour and strictness it would be considered First that it 's much better to put the patient to a little more pain at the first then by skinning the wound overly to heal it deceitfully and to suffer it to rankle inward which will breed a great deal more grief at last Secondly that since all men through corrupt self-love and privy Hypocrisy cleaving to our depraved nature are partial towards themselves and apt to deal more favourably with their own sins than they ought it is therefore safest for them in their own Cases especially to incline to severity rather than indulgence Thirdly that there may be a mitigation used of the present Directions according as the state of the Patient in the several variations thereof shall require but that for the avoiding of partiality not to be permitted to the sole liberty of the party himself but rather to be done by the advice of a Ghostly Physician who if he be a man of such wisdom and moderation as is meet will I doubt not allow a greater indulgence in case he see it expedient than it could be safe for the Party herself to take of her own head Fourthly That in all this Discourse I take not upon me to write Edicts but to give my advice that is to say not to prescribe to the judgement of others if any shall see cause to descent but to deliver my own opinion being requested thereunto by a Reverend Friend with such a faithfulness and freedom as becometh me to do and truly those Parties whom it most concerneth ought not to blame me for it howsoever inasmuch as there can be no cause to suspect that I should be carried with any personal respects to be partial either for or against either of them so God is my witness whom I desire to serve I had not any intimation at all given me neither yet have so much as the least conjecture in the World who either of them both might be 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 Public Affairs 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 myself 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 myself perhaps too much with my own ignorance in our home Affairs 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 Battle 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 opportunity to have advised with some more knowing Men and of greater experience and judgement than myself in these matters or at least that you had sent me together with the two enclosed Letters a transcript of your Answer whose judgement I do with great reason very much value unto the former of them for there I assure myself I should have met with such Materials as would have served me for a good foundation to work upon yet to satisfy your desire so far as in me lieth and the rather for the Gentleman's 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 men's employments in general II. The nature of the Soldier's employment in particular III. The end that Men may propose to themselves in following the War or what it is that chiefly induceth them thereunto IV. The condition of the Person so employed or to be employed I. Considerations of men's employments in general 1. men's employments are of two sorts The one of such as any man may without blame from others or scruple within himself follow merely 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 and 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 Superior 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 Merchandise Manual Occupations the study of the Law etc. 2. But another sort of Employments there are whereunto a man hath not a just right primitively and of himself neither may he lawfully exercise the same merely 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 Employment of a judge a Constable an Arbitrator etc. which are therefore said to be juris delegati because the right that any man hath to such Employments 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 judge 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 judge 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 than 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 Employments 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 Employments 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 etc. but for distinction sake as the Latins make a difference between vitae institutum and munus we may call those of the former sort Man's profession and those of the latter sort his Office so a Man is by Profession a Lawyer by Office a judge by Profession a Husbandman by Office a Constable 4. To bring this Discourse home to the present business we are next to inquire to whether sort of the two the Employment of a Soldier 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 affairs of this life that he may please him that hath chosen him to be a Soldier the word is applied to him that warreth with the note of Universality annexed seemeth to imply as if he supposed that no man might go to war 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 Man's Profession or particular calling which Men of all Professions are in obedience to their Governors 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 Soldier upon the same account that men apply themselves to Trades to the practice of the Laws and to other like civil Employments II. Consideration of the Soldier's Employment 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 Soldier 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 Soldier every time he draweth his Sword in the field is by the very nature of his Employment supposed to do it either with a resolution to lose his own or to take away his enemy's 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 Commandment 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 Soldier 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 Man's 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 justice 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 hazard 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 hazarding of the Prince's life in a just and necessary War out of which Case whosoever shall expose his life to hazard 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 Country 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 Country's 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 Governors' 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 hazard it upon the Sword in fight without his Sovereign's 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 justify the kill of another though an enemy in Battle if he have no other warrant for taking of Arms then from himself for War is a kind of judicature wherein the Prince that wageth the War is as the judge that giveth sentence of death against the Enemy as a disturber of the Peace of his Country and all that engage in the War 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 lawful Authority as well as he that pronounceth the sentence or else he is a Murderer as well as This. Now the Soldier that by fight 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 judge 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 judge 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 judgement 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 refer him over from himself to another's judgement 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 Soldier 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 Soldier 1. Sigh the goodness or badness of men's actions and undertake dependeth very much upon the end which they propose to themselves therein he that would desire to lead a Soldier's 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 aught to be the true end of the thing itself the true end of the War which only can warrant it lawful we all know is the necessary preservation of a Commonwealth 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 hear many times the warrior hath another end to himself far distant from that of War 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 director tendency unto that for which the thing itself was ordained 2. Now the ends which men desirous to follow the Wars do usually propose to themselves in so doing are especially one of these Three Lucre Honour or to do their Country service concerning which we are to inquire severally whether or no and how far forth any of these may be a sufficient inducement to a Christian or but moral man to follow the Wars as his particular Calling or Profession 3. For Lucre first He that hath a warrant otherwise to employ himself as a Soldier may doubtless lawfully both receive pay and require it john the Baptist allowed the Soldier's 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 employment being called thereunto have an eye to his profit and an actual intention if moderate and otherwise rightly qualified of getting himself a livelihood 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 Wars as it is evident by their actions that very many of our Common Soldiers 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 justice and Moderation that should be in every Christian to set up a Trade of killing of Men for Money The mere Mercenary Soldier therefore or a Soldier of fortune as we call him I find every where inveighed 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 Murder 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 Wars may be not only lawful but commendable also and useful in a Soldier 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 Erterprises and such as may win Honour and Reputation and restraineth them from those base 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 Soldier for making that his Profession which is the Point now in hand this of Glory is of no importance than 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 Wars cannot but desire the continuance of War that so his hopes of gain may continue so he that aimeth to get himself Glory by the Wars cannot but desire the continuance of War that so the opportunities of increasing his Glory may continue for there is a Dropsy of vainglory 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 Wars 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 hindering 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 privilege 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 embroiling most Commonwealths in Wars 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 titulique cupido Juvenal Sat. 10. 5. So that if there be any possibility of finding a person capable to take upon him the employment of a Soldier as his proper Profession it must be among those that propose to themselves the same end therein that is or aught to be the end of War 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 Wars 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 public Good and the Peace of his Country before all private interests The trial whereof is if he take up Arms 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 hazard 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 Soldier as his proper Profession and that in two Cases 6. First that which in the nature of the Employment itself is rather an Office than a Profession such as we have already shown the Shoulders employment to be may yet become to the person so employed as his proper Profession if he shall be appointed thereunto by lawful Authority especially if it be done with a declared intention whether expressly or interpretatively declared of continuing him for life or for any long space in the same and that the said employment 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 judge of either Bench or a Baron of the Exchequer the Office of a judge 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 Sergeant or Counsellor at the Law by his particular Commission to ride this Summer's Circuit into such and such Countries and there to execute the Office of a judge the Party so constituted and appointed hath by virtue of that Commission full power to do the Office of judge 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 judges in their Circuits are yet doth he not thereby come to be denominated a judge 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 judge 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 Governor of Dover Castle or of Barwick that Office than is as his Profession or particular Calling because it is to be supposed he is to continue in that employment and to attend the same until the King's pleasure be further known therein but if the King upon some sudden 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 Employment in that service being but temporary and to determine as soon as the business were ended should not otherwise then in courtesy 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 employ themselves in the exercise of Arms 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 daily 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 lest they should be forced if an unexpected War should happen to call in Foreigners for assistance which is both dishonourable and dangerous the necessity hereof too well appeareth by the evil 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 Wars 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 War 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 than 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 War was in a manner wholly ordered by their directions witness the great power that Ruthen Urrey King Meldram etc. had in the Armies on either side 8. The weightiness then of Prince's Affairs upon all emergent occasions rendering it necessary for them not only to have power to command their Subjects of whatsoever Rank or Profession to serve as Soldiers in their Wars 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 Arms and bred Soldiers 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 settled Peace and Freedom 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 Soldier's 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 Mustermasters are besides that our own reason will tell us the Rawness and Unserviceableness of our Trained-bands in the beginning of the late Wars did abundantly manifest and in the latter Case the Soldier if he will have Employment 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 sense also no less then in that other in which it is commonly used relating to men's 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 Wars together and the justice of the Cause appear neither more nor less on the one side than the other if in case a third Prince or State out of a sincere desire to Establish the Peace of Christendom after other offers and mediations for that purpose made in vain might lawfully join in Arms with the one party to force the other to Peace why a private person might not as lawfully having the same intention enter into Arms 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 Arms which cannot be the case of private Men. Secondly That Princes may see cause to set in for their own safety and interest lest 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 Christendom 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 War Princes have a judicial private Men an executive power only and he that hath no power but to execute the sentence of a judge is bound to wait the judge's 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 War where he ought not is unjust too even as a judge is unjust which pronounceth a wrong sentence but herein is the difference between them for taking up of Arms 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 always 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 alleged 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 public 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 justitia politica and justitia 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 justice 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 men's 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 justice 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 Arms is one special part by which the Law of Nations together with the Law of Nature and the Divine Law as aforesaid the justice 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 Politic justice allowed as lawful and just between Princes which between private men would by the rules of mere moral justice 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 Ambassadors and menaging of Embassies in making Alliances and Confederacies but especially in the persuance and effects of War which seem much to swerve from the ordinary Precepts of moral justice 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 Conqueror which if he give to the Soldiery to plunder as usually is done every Soldier 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 War for some wrong offered to his Merchants or for some Rudeness or Incivilities done to his Ambassador for even these in case Reparation be demanded and denied have been ever held just causes of War as Amphitruo in Plautus rendereth that as a sufficient reason of his War 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 waste his Country fire his Towns and Villaeges and spoil 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 careful by all just means to balance 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 join in Arms 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 War 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 show 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 Judgement 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 Employment 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 embark himself in that Employment 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 The CASE of SCANDAL 1. IN judging of Cases of Scandal we are not so much to look at the event what that is or may be as at the cause whence it cometh for sometimes there is given just cause of Scandal and yet no Scandal followeth because it is not taken sometimes Scandal is taken and yet no just cause given and sometimes there is both cause of Scandal given and Scandal thereat taken but no man is concerned in any Scandal that happeneth to another by occasion of any thing done by him neither is chargeable with it farther than he is guilty of having given it If then we give Scandal to others and they take it not we are to bear a share in the blame as well as they and that a deeper share too Vae homini Woe to the Man by whom the Offence cometh Matth. VIII 7. but if they take Offence when we give none it is a thing we cannot help therefore the whole blame must lie upon them wherefore if at any time any doubt shall arise in the Case of Scandal how far forth the danger thereof may or may not oblige us to the doing or not doing any thing proposed the Resolution will come on much the easier if we shall but rightly understand What it is to give Scandal or how many ways a Man may become guilty of Scandalising another by his example The ways as I conceive are but these four 2. The first is when a Man doth something before another Man which is in itself evil unlawful and sinful in which Case neither the intention of him that doth it nor the event as to him that seeth it done is of any consideration for it mattereth not whether the doer had an intention to draw the other into sin thereby or not neither doth it matter whether the other were thereby induced to commit sin or not the matter or substance of the action being evil and done before others is sufficient to render the doer guilty of having given Scandal though he had neither any intention himself so to do nor were any other person actually Scandalised thereby because whatsoever is in itself and in its own nature evil is also of itself and in its own nature Scandalous and of evil example Thus did Hophni and Phineas the Sons of Eli give Scandal by their wretched profaneness and greediness about the Sacrifices of the Lord and their vile and shameless abusing the Women 1 Sam. II. 17 22. And so did David also give great Scandal in the matter of Uriah 2 Sam. xii 14. Here the Rule is Do nothing that is evil for fear of giving Scandal 3. The second way is when a Man doth something before another with a direct intention and formal purpose of drawing him thereby to commit sin in which Case neither the matter of the action nor the event is of any consideration for it maketh no difference as to the sin of giving Scandal whether any Man be effectually enticed thereby to commit sin or not neither doth it make any difference whether the thing done were in itself unlawful or not so as it had but an appearance of evil and from thence an aptitude to draw another to do that by imitation which should be really and intrinsically evil the wicked intention alone whatsoever the effect should be or means soever should be used to promote it sufficeth to induce the guilt of giving Scandal upon the doer This was Ieroboam's sin in setting up the Calves with a formal purpose and intention thereby for his own secular and ambitious ends to corrupt the purity of Religion and to draw the people to an Idolatrous worship for which cause he is so often stigmatised with it as with a note of Infamy to stick by him whilst the world lasteth being scarce ever mentioned but with this addition jerohoam the son of Nebat that made Israel to sin Here the Rule is Do nothing good or evil with an intention to give Scandal 4. The third way is when a Man doth something before another which in itself is not evil but indifferent and so according to the Rule of Christian Liberty lawful for him to do or not to do as he shall see cause yea and perhaps otherwise commodious and convenient for him to do yet whereat he probably forseeth the other will take Scandal and be occasioned thereby to do evil In such Case if the thing to be done be not in some degree at least prudentially necessary for him to do but that he might without great inconvenience and prejudice to himself and any third person leave it undone he is bound in Charity and Compassion to his Brother's Soul for whom Christ died and for the avoiding of Scandal to abridge himself in the exercise of his Christian Liberty for that time so far as either to suffer some inconvenience himself by the not doing of it then by doing of it to cause his Brother to offend the very Case which is so often and so largely and so earnestly insisted upon by St. Paul Romans xiv 13 21. & xv 1 3. 1 Cor. viij 7 13. & ix 12 22. & x. 23 33. Here the Rule is Do nothing that may be reasonably forborn whereat it is like Scandal will be taken 5. The Last way is when a Man doth something before another which is not only lawful but according to the exegencies of present circumstances pro hic & nunc very behooveful and in some sort prudentially necessary for him to do but forseeth in the beholder a propension to make an ill use of it and to take encouragement thereby to commit sin if there be not withal a great care had to prevent as much as is possible the Scandal that might be taken thereat for Qui non prohibet peccare cum potest jubet In such case the bare neglect of his Brother and not using his utmost endeavour to prevent the evil that might ensue maketh him guilty upon which Consideration standeth the equity of the judicial Law given to the jews Exod xxi 33 34. which ordereth that in case a Man dig a Pit or Well for the use of his Family and looking no farther than his own Conveniency put no cover on it but leave it open whereby it happeneth his Neighbour's Beast to fall therein and perish the owner of the Pit is to make it good in as much as he was the occasioner of that loss unto his Neighbour which he might and ought to have prevented In this last Case the thing is not for the danger of the Scandal to be left undone supposing it as we now do otherwise behooveful to be done but the action is to be ordered and carried on by us for the manner of doing and in all Respects and Circumstances thereunto belonging with so much clearness tenderness and moderation and wisdom that so many as are willing to take notice of it may be satisfied that there was on our part a reason of just necessity that the thing should be done and that such persons as would be willing to make use of our example without the like necessity may do it upon their own score and not be able to vouch our practice for their excuse even as the jew that stood in need to sink a pit for the service of his House and Grounds was-not for fear his Neighbours Beasts should fall into it and be Drowned bound by the Law to forbear the making of it but only to provide a sufficient Cover for it when he had made it Here the Rule is Order the doing of that which may not well be left undone in such sort that no Scandal may through your default be taken thereat 6. I do not readily remember any doubt that can occur about the reason of Scandal which may not be brought within the compass of these four Rules and then the right applying some or other of these Rules will give some furtherance towards the resolution of these doubts The CASE of A BOND taken in the KING'S Name Proposed july 1658. R. C. Was seized in fee of certain Houses of small value with the Appurtenances and in the year 1635 whiles Owner of the said Houses he entreated A. B. to be his Surety for One hundred Pounds and continued the same at Interest till 1639. At which time he requested A. B. to discharge that Bond and in consideration thereof selleth the said Houses to A. B. and his Heirs for ever the said R. C. also buyeth of a Merchant a parcel of Goods the Merchant being a Receiver of some part of the late King's Revenue and under pretence of a privilege thereby taketh a Bond of the said R. C. for the payment of Two hundred pounds to himself but in the Name of the late King as if indebted to the King and under that pretence procureth an extent upon the Houses sold to A. B. and maketh seizure thereof Was R. C. seized of the same when he entered into that Bond The said King 1640. published a Proclamation wherein he declared That the taking of such Bonds was contrary to His Intention and an abuse of his Prerogative and prohibited all such crafty Courses as tending to the Oppression of his Subjects and it is to be noted that the said Proclamation was published two years before the extent was executed upon the Houses which nevertheless have been held under that extent about fourteen years which is beyond the value of the Houses The said R. C. died poor the Merchant is dead also without any Child leaving an Estate behind him of Twenty thousand Pounds as is supposed a great part visible in Lands as appeareth by his last Will upon Record Advice of Council at Law being taken how the said A. B. may be most readily relieved he is directed to Petition the present Supreme Power to pardon the Debt because taken only in the King's Name when there is no Debt due to him from R. C. As to the Case proposed 1. I am clearly of opinion that the taking of Bonds in the King's Name to the mere behoof and for the advantage of private persons when there was such Debt really due to the King was a fraudulent and unjust act from the beginning for though it were not actually forbidden and so might perhaps be valid enough in foro externo till the issuing out of the King's Proclamation in that behalf yet was it in point of conscience unlawful before as being a crafty course so refused by the King himself and guilty of a double injustice the one to the King as an abuse to his Prerogative the other to the Subject as tending to their appression as by the Proclamation is recited and that therefore 2. Neither might the Merchant whiles he lived nor ought his Executors now he is dead to make advantage of the Kings Name used in that Bond nor might be then nor may they now by virtue of the King's Prerogative or under the colour thereof for the recovery of the said Debt use any way to the prejudice or damage of the Obligee or of any Purchaser from him other than such as he or they might have used in case the Bond had been taken in the Obligee's own Name and not in the Kings 3. If any Proceedings have been made already in pursuit of the Debt due upon the said Bond upon no other ground or colour than the Prerogative aforesaid whereby the said A. B. cometh to be endamaged or prejudiced more than otherwise he should have been that the Executors ought to make him some considerable satisfaction for the same although perhaps not to the full of what he hath suffered or would demand yet in such a proportion as to the judgement of indifferent persons in a case wherein both parties if they must do what is fitting and just are sure to be losers shall seem reasonable in case the parties cannot accord it between themselves 4. Whereof although through the corrupt partiality that is in most I may truly say all men more or less I do not apprehend any great likelihood for neither part would and yet both must be losers yet I should advise that trial were made thereof in the first place as the most kindly Christian way of growing to peace if parties will be persuaded to meet about it and can be made Masters of their own passions when they are met and surely matters might easily be brought to a handsome conclusion if both parties but especially the Executors who seem to have the advantage in Law would not stand too much upon whatsoever advantage they may seem to have but as in conscience they ought submit both that and all other circumstances appertaining to the business and indeed their whole mutual demands to the final determination of that transcendent Law which Christ hath established as the only Royal Standard whereby to measure the equity of our actions in all our dealings towards others viz. To do as we would be done unto or which cometh to one Not to do that to another which if he should do to us supposing his Case was ours we should think ourselves scarce justly and fairly dealt withal 5. But lastly in case no such accord can be made either by agreement of Parties or mediation of Friends and that through the only default and stifness of the Executors A. B. having by all fair ways faithfully sought and endeavoured the same I see not but the said A. B. may but not to be done but as his last refuge seek to relieve himself according to the advice of his Council by making his Addresses to such person or personage as for the time being shall be in actual possession of the Supreme Power and so in a capacity to overrule the Law in a Case of that nature by forgiving that Debt whereupon the King was colourably and fraudulently entitled for private advantage to the prejudice of a third person but was not at all a debt owing to him from the Obligee B. P. 17. july 1658. THE END