Five Cases of Conscience, Opinion
As to the Case proposed.
1. I am clearly of opinion, that the taking of Bonds in the Kings Name, to the meer 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 Kings 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 Kings 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 then 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, then the Prerogative aforesaid, whereby the said A. B. cometh to be endammaged or prejudiced more, then 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 judgment 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 tryal were made thereof in the first place; as the most kindly Christian way of growing to peace, if parties will be perswaded 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 handsom 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 our selves 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 wayes 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 entituled 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. Iuly, 1658.
THE END.
End of the text · Robert Sanderson, Five Cases of Conscience (1666)