to the law of Nations according to naturall equitie boni viri arbitrio according to a good mans conscience according to plaine and direct meaning according to right and vpright iudgement that they are farre from all fine fetches and streines much more from malice and plaine deceit that they intend no subtiltie but simplicitie which Baldus saith is the best interpreter of the law of nations For the law of nations obserueth onely the simple truth the simple truth onely is followed by good and faithfull meaning and no interpretation in this case is taken for good which doth not sound well to common mens eares This same is by diuers others also very largely affirmed Decius Hottoman Decianus and Chassaneus doe write that all contracts with princes and common-wealthes are bonae fidei The Canon law forteth contracts of leagues of truce and of peace as pertaining to the law of nations Cicero saith that equitie is the obiect of Foecial law that it pertaineth to lawyers to weigh words and syllables and not to the professors of militarie simplicitie which is so many waies fauored by the law It is free and secure saith Tacitus and after him Alciate and farre from the cunning practises of courts of Plea And therefore Guicciardine and Sleidan doe worthely blame Charles the fifth and Lewes King of France because they brought interpretations of words and of contracts which were more fit for Lawyers than for a Prince So then by these opinions thus grounded it cannot hold true that vpon change of name leagues treaties forren freedomes of trade and trafficke forren contracts may bee drawne into question and made subiect to quarrell and cauillation which is further expressely denied by Panormitane in these words Contrahens in propria persona efficaciter obligatur licet mutauerit sibi nomen est ratio quia nomina sunt inuenta significandorum hominum gratia Sed ex quo constat de corpore non est curandum de nomine He that contracteth in his proper person is effectually bound although he shall change his name the reason is because names were inuented to signifie men But where the body is certaine we must not haue regard to the name And Vlpian one of the authors of the Ciuill law in like manner aduoweth If we disagree about the name but the body is certaine there is no doubt but the contract holdeth good And therefore if any Prince shall vse pretence of change in name as a leap from his contract whether of consederation or commerce hee exposeth himselfe thereby both to the hatred and reuenge of other Princes as one that violateth the law of nations His fact shall be no more either allowed or followed than was that of Pericles who hauing passed a promise of safetie to his enemies Si ferrum deponerent slew them for that they had iron buttons vpon their caslocks Or that of the Plataeenses who hauing couenanted to restore certaine prisoners deliuered them slaine Or that of Alexander who hauing conditioned safe departure to certaine souldiers which had held a citie against him slew them when they were a little vpon their way Or that of the Romanes who hauing couenanted that they should take halfe the ships of Antiocâ—us brake all his ships in pieces and tooke halfe of euery ship Or that of those Romanes who being discharged by Anniball vpon oath to returne if other captiues should not be deliuered for them supposed themselues to be free of their saith for that presently after they were departed out of the camp they returned againe as hauing forgotten to take something with them Or that of Agnon Cleomenes and of the Thracians who hauing made a surcease of armes for certaine daies attempted hostilitie against their enemies in the night Or that of the Graecians who hauing bound themselues for deliuerie of ships deliuered them without ruthers oares or sailes Or that of the Locrians who hauing contracted perpetuall peace so long as they should tread vpon that earth and beare those heads vpon their shoulders shaking forth some earth which they had priuily put within their shooes and casting away those heads of onions which they had laid vpon their shoulders they brake sodainly into warre against those who by this abuse had been made secure Or that of Ariandes and the Persians who hauing couenaâ—ed friendship so long as that earth should stand by sincking the earth whereupon they stood which had been of purpose made hollow before they did beare themselues discharged of their oath Or that of the Perusini in Italy who hauing made peace with the Pope so long as they should beare de vite in their bodies which word in the Italian language signifieth both life and vine hauing cast away certaine vine-branches which they did beare secretely in their bosomes they surprised the Pope with vnexpected armes These and the like subtill and sophisticall sleights haue alwaies been equalled to flat falsehood and violation of faith they haue alwaies been esteemed beneath the degree of any base rayling or reproch And whosoeuer doth vse such auoydances and shifts they are neuer to be held assured in faith because they will not want one euasion or other when occasion shall serue for their aduantage But as I said before in contracts of this high nature it is both dishonourable and vniust not onely to inferre fraudulent interpretations but to inforce contentioÌ„s vpon any strict poynts of law which as Decianus saith in fauourable contracts are neuer regarded because by too much subtiltie they doe often ouerthrow the truth of meaning For nothing is more contrarie vnto truth than ouer sharpe subtiltie vpon words Of no lesse truth can it be that the Kings precedence before other Christian kings which is gouerned by antiquitie of kingdomes and not by greatnesse may by this change of lawes be endaungered and place turned last because it is the newest For by the common law of nations the equitie whereof is held to be most liuely expressed in the Ciuill law so long as the people doe remaine the same and loose no point of their libertie and honor there can be no inward change whether of name of seate of title or of forme of gouernment whereby the dignitie of their state may be endaungered Of name I haue sufficiently written before And concerning change of state it was the same Empire whose principall seate was at Rome and at Constantinople and at Rauenna and at Prage And although it looseth in one part and gaineth on the other although it be remoued thereby out of the originall seate yet doth it remaine the same Empire Euen as a field remaineth the same which looseth vpon one part by alluuion of waters and winneth vpon the other or as it remaineth the same sea which leaueth one part of earth and possesseth another or as it remaineth the same riuer which doth altogether change the channell For
A TREATISE OF VNION OF The two Realmes of ENGLAND and SCOTLAND By I. H. AT LONDON Imprinted by F. K. for C. B. and are to be sold at his shop in Pauls Church-yard at the signe of the Swanne 1604. This treatise consisteth of two parts A commendation of Vnion General Chap. 1. Particular of the two Realmes of England and Scotland wherin is considered the Vtilitie viz. The extinguishing of wars betweene the two Nations whereby 1. Our victories haue been hindered 2. Inuasions haue been occasioned 3. The borders betweene both Realmes haue alwaies been laid waste 4. The inner partes haue been often distressed Enlargement of Dominion from whence will proceede 1. The Dignitie and repatation of the State 2. â—ssurance of Defence 3. Strength to enterprise 4. Ease in sustaining the publike charge of affaires Cap. 2. Necessitie Cap. 3. The means vvhereby this Vnion may be assuredly effected and this consisteth in two poynts 1. By incorporating both people into one politicke body and this is done by binding them together with the same Lawes particular customes alwaies reserued which are the very nerues of a politicke bodie Chap. 4. Here two opinions are considered 1. That the Lawes of England since the time of Brutus were neuer changed which is fabulous 2. That change of Lawes traineth many disorders with it But this faileth in two cases 1. Where the change is not great 2. Where it is not suddaine but in time and by degrees Cap. 5. 2. By knitting their minds in one contentment and desire Chap. 6. Herein two circumstances are principally considered Equalitie in Libertie and Priuiledge Capacity of office charge Cap. 7 Conformitie or Similitude Cap. 8. especially in Habite and behauiour Cap. 9. Language Cap. 10. Name Cap. 11. wherein is further considered VVhat common name is most fit and whether the like change in name hath been vsuall or â— Cap. 12. Certaine obiections concerning Matters of State inward or matters of Lawe Cap. 13. Matters of State forrein or matters of entercourse Cap. 14. Matters of honor and reputation Cap. 15. The Preface I Am not ignorant how aduenturous it is to entermeddle in those controuersies wherein the minds of men being stiffened in conceite and possessed with preiudice of opinion they esteeme a man in that degree learned or vnlearned wise or weake according as hee doth either iump or iarre with them in iudgement But in these high controuersies of state it is dangerous also for a priuate man to deale partly for that he may be assured not to escape the blowes of them whose enuious disposition cannot looke right vpon any thing nor endure the burthen of another mans deseruing well but especially for that diuers times he engageth his safetie vpon vncertaine euents wherein his hazards do very farre surmount his hopes And yet because in ciuill differences we cannot but hold such for enemies as either through negligence which is ill or through feare which is worse stand in shew of Neuters expecting the issue with an idle eye for that it often happeneth that by withdrawing our selues in the beginning of dissentions we are afterwards able to affoord no other either comfort or reliefe but to mourne with the rest in the publike miserie I haue aduised and thereupon aduentured to thrust my selfe into the common throng being rather assured than in hope that howsoeuer I be both priuate and meane yet the paines of an honest Citizen is neuer vnprofitable And hereof I haue the more reason to presume for that I finde not my selfe caried by any peeuish humor of discontentment which will ruinate so many as it doth rule nor by any seruill desire of pleasing or flattering which I haue alwaies esteemed more base than begging nor by any false and foolish ouerweening whereby many doe conceiue that nothing can be well either determined or done except they haue a finger in it but first for loue to the good of the state whereto we are by all true rules most neerely tied and next in dutie toward his Maiestie to whom we are not onely in conscience but in necessitie bound to bee loyall Touching whom it concerneth vs also to consider in what state of reputation he shall stand and how others will be encouraged to vse insolencie against him the thoughts of men aduancing by degrees if in his first purposes hauing reason and equitie concurring with his power he shall not finde the meanes to preuaile It behoueth vs to be as resolute and constant for the good of the state so wise in discerning what is good otherwise we are not resolute but rash and our constancie is no other than an ill grounded obstinacie It behoueth vs againe not to be more wittie to frame feares than wise to iudge them assuring our selues that those things which seeme dangerous and are not doe daily decline and deminish by degrees and that those counsailes which proceede not from iudgement well grounded but from some distemperature of affection after they haue a little throwne vp their fume and fire doe sodainly dissolue and vanish as vaine Lastly it behoueth vs to foresee that a time may come which will manifest how profitable it might be not to haue been negligent in things which seemed to be small for that oftentimes vpon matters appearing of little weight things of great consequence doe depend A TREATISE OF VNION CHAP. I. A commendation of Vnion in generall I Will not write generally of the nature of vnion whereof diuers haue diuersly made discourse And concerning the excellencie thereof I know not what neede there is to adde any thing to that which S. Augustine saith not onely that it representeth vnto vs the soule of man which is a most pure and simple substance not distracted by communicating it selfe to euery part of the bodie but also that it is the very image of God who both perfectly containeth and infinitely exceedeth the excellencies and perfections of all creatures who being the only true one loueth this similitude of himselfe in all his creatures And of this point the Philosophers also seemed to haue attained a taste for Macrobius referreth perfect vnion onely vnto God terming it the beginning and end of all things being altogether free from beginning chaunge or end The more ancient Philosophers haue likewise held that from vnitie which they call 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 all things doe proceede and are againe resolued into the same Of which opinion Laertius writeth that Musaeus of Athens the sonne of Eumolpus was author who liued long before the time of Homer but afterward it was renued and followed by Pythagoras as Plutarch Alexander and Laertius doe report who added thereunto that vnitie is the originall of good and dualitie of euill And this opinion was maintained also by S. Hierome whose sentence is to this purpose repeated in the Canonicall decrees but vnder the title and name of S. Ambrose Hereupon Homer doth often call good 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and the
change of the Kings title in Ireland maketh this point more questionable and suspect The second doubt is concerning one of the principall inconueniences which are alleaged namely an euasion from the reciproque oathes betweene the King and the people For seeing oathes doe altogether concerne the soule and conscience and therfore are vnderstood and ruled onely by the lawes of religion I doe not see how they should receiue construction from any nice point of positiue law The third is how all these inconueniences should be either so certaine or of such nature and qualitie that no prouision can cleere or auoide them What shall we suspect either the weaknesse of lawes or the weake wisedome of the state Shall we suspect either the wisedome of the state in making of lawes or the iustice thereof in maintaining them Are lawes now of force to hold these matters in forme and shal they not hereafter be able to doe the like Are there any such inward difficulties which lawes and policies cannot combat and ouercome For my part I think and thinke that I thinke true that the wisedome of the state is farre aboue these or any other inward incommodities especially in a Monarchie where ciuill matters are easily redressed by reason of the supreme authoritie of the Prince Neither must wee looke to enioy any notable benefit without some difficulty and inconuenience When did the cloudes make flourishing fields without trouble of moisture when did the Sunne yeeld plentifull haruest without annoyance of heate Such is the weaknesse of man that it cannot beare either good or euill simply without temperature or allay And yet me thinke although all other meanes to cleere these inconueniences should bee perplexed and hard it should bee not difficult and direct to auoide the same by changing the Common law in that point onely and by new decree to establish that the change of name in the King should not draw on an erection of a new kingdome and a dissolution of the old and that whatsoeuer hath been done or spoken by the one name should be receiued by the other And this I doe the rather hold not to bee vnreasonable for that then the Common law should herein agree with the Canon and Ciuill lawes the substance of which lawes although they be often abased by abuse is the common practise of all the world Concerning the Canon law Panormitane witnesseth The Canons attribute no force vnto names The Ciuill law is herein more plentifull and plaine for although it be true which Bartolus saith Change of name doth vsually follow change of state yet it holdeth not in conuersion that change of name doth likewise draw with it change of state but it is plainly decided to the contrary Although the name be changed yet doth the condition thereby receiue no change And this did Dioclesian Maximinian by their imperiall constitution decree or rather they declared it to haue been often decreed before that as names were freely imposed at the first so the change of them is not dangerous if it be done without deceit And therefore they that are free may lawfully change name as it hath been often ordained without any preiudice thereby to themselues The reason hereof is plaine first in nature because by change of accidents the substance doth not change secondly in law because names are imposed at pleasure and doe serue for signification of things only which so as they may be vnderstood it is little materiall what either name or meanes bee therein vsed It sufficeth onely that they bee knowne whether by one name or by another or by any description or demonstration which are equiualent to a name And sometimes it happeneth as Cicero saith that things are better vnderstood by other names than by their owne Hereupon the interpreters of the Ciuill law do agree that so long as there is no question of the bodie we are not to haue regard to the name and that disputation about names is to bee left vnto them who are obstinately contentious And this either declaration or chaunge of this point of Common law would not bee much vnlike to that which was done in the beginning of Queene Maries reigne For because in many ages before the inuasion of the Normans the souereigntie of state had not been borne by a woman some curious conceites hauing learned doubts out of leasure brought into question whether the lawes which had passed before vnder the name of King should then bee of force vnder the name of Queene Whereupon a declaration was made that whatsoeuer statute or law doth appoint that the King of this realme shall or may haue execute and doe as King or doth giue any commoditie to the King or doth appoint any punishment of offenders against the dignitie of the King the same the Queene being supreme gouernesse may by the same authoritie likewise haue exercise execute correct and doe to all intents By this meanes also another doubt may be sufficiently secured and that is a possibilitie of alienation of the Crowne of England to the line of Scotland in case his Maiesties line should determine for that being a new erected kingdom it must goe in the nature of a purchase to y◠next heire of his Maiesties fathers side Which besides that it is against the naturall order of succession which is obserued by all nations in questions for discent of Crownes besides that it is contrary to the Ciuill lawes whereby the law of nations is chiefly declared besides that the peculiar law of England in this point if it be cleere frō question is neither hard nor incōuenient to be changed seemeth also so vnlike to come to passe that it appeareth a vaine thing to busie our thoughts with feare of it But to men setled in suspition doubts doe daily multiplie and nothing is considered and cast nothing nourished with more sweete delight than difficulties and dangers All those inconueniences are set in view which ielousie or feare can any waies stirre vp which suffereth not them to see much lesse to expect or hope for those benefits whereof in reason they might stand assured In their mindes lie vanquished that forwardnesse and force which men in counsaile should especially expresse and whatsoeuer their trauailing thoughts doe suspect the same doe they most certainly expect CHAP. XIIII Of other obiections concerning matter of state forreine or matter of entercourse THe obiections which concerne matter of contract or commerce with other Princes and Common-wealths are more easie to be answered because they are not ruled by the peculiar law of any countrey but by the common law of Nations For so doe Baldus and Alciate affirme that contracts betweene Princes are not stricti iuris but bonae fidei that they do altogether reiect scrupulous interpretations and are not to bee taken either in rigorous or strict termes or els in subtill sense of positiue law vnder which colour wee doe often erre but according