Nine Cases of Conscience, Case 5
The CASE of a BOND Taken in the KINGS 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 intreated 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 Kings Revenue, and under pretence of a priviledge 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 make seizure thereof: was R. C. seized of the same, when he entred 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 as 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 Counsel at Law being taken, have 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 Kings Name, when there is no Debt due to him from R. C.
As to the Case Proposed.
1. IAm 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 oppression, 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 he 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 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 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 themselve.
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 persuaded to meet about it, and can be made Masters of their own passions when they are met; and surely matters might be easily 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 what soever 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 stiffness 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 Counsel, 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 over-rule the Law in a Case of that nature, by forgiving that Debt whereunto 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.
P. P. 17. July, 1658.