heart and one soul and sold their goods Acts 4. and laid the moneys at the Apostles feet those who held the unity of the Spirit in the bond of Peace and needed not the tye and coercive Power of Lawes Talem primum Christianorum conventum suisse D. Hierony mus quales monachi esse imitentur et cupiant esse ut nihil cujusquam proprium sit nullus inter eos dives nullus pauper nec confundebant Christiani dominia bona egentibus in commune conferebant ut perinde ac domini eis uterentur fruerentur But now how ill would it be if all kind of standing provision for the Church and for the Ministery were taken away and their estate made dependent again upon the voluntary devotion of men and subject to the mutability of times and changes in Common-wealths as likewise if the people should now have that power as at first in choosing their Pastors and ministers The people in the primitive times if they had a great power and part in the election of their Pastors they well deserved it in respect of their great Piety and moderation It were very inconvenient they should now use the same course in their elections seeing the people are over numerous and humorous diversly and contrarily affected and disaffected as are likewise the Ministers and Clergy Such power doth not appear to be given to the people by Gods word as they who flatter them do pretend In the Council of Laodicea those popular elections were forbidden which prohibition Origen saith was in his time in respect they were carried with tumultuous clamors favours and rewards Instit lib. 4. c. 3. num 13. Calvin writing of the choosing of Ministers and of those who ought to have the choice he doth not grant it to the people but saith hujus rei certa regula peti non potest And in the Church of Geneva there is not any or very small sign of any Popular Election We find in the Primitive times the Peoples concurrence by some suffrage or approbation per signum sermonem aut silentium liberum and this is as much as is now allowed them by the best Divines of the Presbytery Cap. ult de elecâ—iâ— Duarenus Alii D. Cyprian epist 4. lib. 1. Ita ut omnes audiantur qui ordinationis impediendae causa objicere quidpiam voluerunt as in the ancient Canons But there are varieties of judgements in divers Canons concerning the election of Pastors as whether it must be in the presence of many standers by or at the request of the people or with their testimony or with their consent or by their election and voices And then it is a question whether the greater number present shall by their voices conclude all the absent who are interessed although they are the greater number * Vt sit in Electione Clericorum consensus Cleri Plebis Honoratorum Testimonium Imperatcribus vero Principibus electiones Romanerum Pontiâ—icum atque aliorum Episcoporum referendes esse usus constitutio tradidi â— pro schismaticorum atque hareticorum dissentionibus quibus nonnunquam Ecclesia Dei concussa periclitabatur Distinctio 63. cap. 26 27. Ita erat per vetustiores Canones This popular concurrence in these elections is almost universally abolished some character thereof may remain in some Churches and it is swallowed up in the right of Patronage of Churches for when Princes and Lords of Mannors erected and endowed Churches and thereby much disburthened the People by being thus beneficial unto their Churches and Pastors those Lords for their bounty were called and constituted Patrons of those Churches and had the right of Presentation of Clerks to them and their heirs in those Churches Qui Ecclesiam aedificat Novel 57. 123. cap. 18. aut de suo praebet Clericis annonas jus habet instituendi substituendi Clericos dummodo eos prius commendaverit Episcopo qui eos admittere debeâ—t si Dei ministerio digni sint as it is in the Imperial Law And so by the Canon Law Hoc jus nominandi sen praesentandi Clericum competit â—i C filiis 17. quest 7. Duaâ— ren de benefic minist Ec. cle lib. 5. c. 4. qui fundavit vel collapsam Ecclesiam restituit vel dotavit vel reditum certum largitus fuerit This right of Patronage and presentation to Benefices the Common Law and Statutes of England do grant and the lawes and customes of other Kingdomes as well as the Civil and Canon-lawes So as the Clergy men are not constrained to live any longer upon a part of those common contributions and dividents of monies raised in the infancy of the Church of gifts proceeding from the pious zeal of ancient and venerable Christianity but upon their Tythes and Glebe-lands assigned unto them and the Parishes also being set out and divided and several Pastors placed in Churches under the Bishops of several Diocesses And yet diverse men through a wilde fancy or to slatter the people as they would have the power of electing the Pastors to be in the people so would they have their maintenance left unto their will or to the mutable and arbitrary orders and decrees of Judges and Magistrates which would be a ready way to bring the Clergy into poverty and contempt as being then reputed but as Alms-men of the People or as Tenants at will Others would have their maintenance set out and assigned in money and not in Tithes Some quarrel with Tithes out of covetousness some through ignorance not considering that Tithes have been out of much prudence and equity anciently and universally dedicated to the necessary service of God and his Church or rather still continued since the Leviticall Priesthood was abolished and they will ever appear upon due consideration had of all times and things to be the most necessary natural and equal and in all respects the best maintenance for the Clergy and subject to least exceptions and inconveniences And let them also consider who so little regard Tithes and think they were due only by the Ceremoniall Law of the Jewes and not by Evangelicall Precept whether being since againe restored and dedicated universally under the Gospel by positive lawes and customes of nations to the necessary service of God and sustinance of the Clergy which is required of us by the expresse Evangelical law they are not now become again a sacred tribute and Gods right Ananias keeping back a part of the money consecrated to the service of God and his Church Acts 5. Institut de rerum divisione L. 1. Cod. de Sepulch violat Res quam devoverit quis Jehovae sancâ—a sanctorum est Jehovae Lev. 27.28 Covaruvias Duarenius alii L. 14. Cod. de Sacr. Eccles sub poena Sacrilegii Novel 7. c. 10. Heb 7. we find how he was punished for his sacriledge Quod divini juris est nullius est in bonis Res religioni destinatas jam religionis effectas
rebus judicatis stat status Reipublicae Neither shall a Judicial decree prejudice one under age L siquidem Cod. de Praediis minorum Exravag de reb Eccl. non alienandis l. 5. penult F. de reb eorum qui sub Tut. l. 4. Cod. quib ex cau major l. 35. F. de rejud Cuiac l. 1. F. de just jur neither the Church if any of the legal solemnities injoyned by law are wanting for dolus reipsa praesumitur inesse Or if such decree be surreptitiously gotten then no propriety or right doth pass thereby from the Minor or Church but still they may have their action real or personal non tantum in personam sed in rem ipsam Pacta contra jus Reipublicae non valent hoc ad Ecclesiam trahi debere quae in jure semper comparatur Reipublicae nam jus publicum quod ad statum rei Romanae spectat etiam in sacris sacerdotibus consistit The interpreters of the Law say Ecclesia Respublica minores circumventi vel lapsi in integrum restituuntur ergo Princeps for above all the law is most favourable unto the Prince His Patents Charters and Grants according to common intendment and the usual clause inserted are to proceed from him ex mero motu certa scientia All his Grants and contracts are bonae fidei Baldus alii rather then stricti juris and ought alwayes to be interpreted ex bono aquo He hath many singular priviledges by the Civil law and by the Common law of England He is not deprivable of remedy against undue forms as he can do no wrong so shall he receive no prejudice through the defects in Legal forms The inserting or addition of any words or clauses prevail not against him when there is cause to presume that he was ignorant or deceived There ought not to be with any man but there must not be with him a striving saevâ praerogativâ verborum contra juris sententiam nec rei gestae veritatem ulla scripturâ mutari as in the Roman law If there are legal and strong presumptions praesumptiones juris de jure quae pro liquida probatione habentur that his grant did not proceed from his certain knowledge and meer motion but was surreptitiously gotten no words prevail but the more forceable they are Baldus the more fraud they carry with them Vbi abundantior est Cautela evidentior fraus praesumitur quod quis ita cautè facit ne fraudem fecisse videatur major periculosior fraus ex eo praesumitur Clausulae cautiones insolitae ipsum actum magis suspectum faeciunt Beldus Decius alii licet abundans Cautela non nocet tamen quod dubitationis causae tollendae videtur poni si sit insolitum suspicionem inducit contractum simulatum arguit Injustice the more it hath of the shew of legality the more mischief it worketh That lye is the worst saith Quintilian which seemeth to come nearest unto the truth Nulla major pestis est humano generi justitiae Cicero offie lib. 1. quam eorum qui cùm maximè fallum id agunt ut boni viri esse videantur This clause of certain Knowledge doth not work effectually nisi circa ea quae Princeps praesumitur scire prout sunt ea quae in jure consistunt secus circa ea quae in facto consistunt de quibus saepe praesumitur ignorantia ejus Decis Rotae Rom. Farinacii 656. pars 2. Neither can that other forceable clause of meer motion hinder a just exception and be a barr from making deceit appear which deceit may proceed vel ex re ipsa vel ex parte impetrantis quando ex suggestione ejus obtinetur Et cum emanaverit ad supplicationem supplicantis censetur Papa vel Rex aliquis se fundasse super narrata si narrata non verificantur Decis Rotae Rom Durandi gratia confirmatio vel rescriptum corruit Yet notwithstanding a man may be said to grant of his own proper and meire motion although he accepteth the petition of the party when he is not moved to grant only because the other desired it but of a willingness also and bounty in himselfe Decretal de rescriptis c. 20 In the Imperiall Law it doth often occur nos amoventes quicquid surreptitia impetratio furtiva deprecatio vel potentia alicujus elicuit Vbi literas impetrant à nobis per fraudem vel malitiam L. 2. l. 6. Cod. tit si contra jus vel uti litatem publicam Coveruvias var. resol l. 1. c. 20. l. 3. l. 1. Cod. de precib Imp l. ult Cod. si 〈…〉 pubil veritate occultata vel suggesta falsitate If those acts are void or voidable by Law which are defective in respect of the form or in respect of the indirect manner or means used for the obtaining them as force fraud false suggestions or concealing a truth necessary to be known ubi mendacium reperiatur sive in facti sive in tacendi fraude those acts also are undoubtedly void in the matter and subject which are utilitati publicae adversa vel juri communi and such are those which are against the just and ancient rights of the Crown against the fundamentall Laws and the just rights and liberties of the subjects L. 7. F. de pâ—ctis l. 112. F de legatis 1. l. 5. Cod. de legibus for such are against the common peace and weal-publick Nec pactum nec jusjurandum à jure communi remotum servandum est Jusjurandum contra vim authoritatem juris nullius est momenti But a Law is of greater concernment then either the contracts of private men or the grants and ordinary Charters of a Prince If equity be wanting to a Law the vigor and life of it is wanting Legum parens est aequitas Cicero l. 90. F. de regulis Ju. is in omnibus maximè in jure spectanda est aequitas Our Lawyers sinde in their books that when an act of Parliament is against common reason or common equity or cannot be executed without doing wrong the common Law doth controwl that act and doth adjudge it void agreeable to that rule given by the Interpreters of the Civil and Canon Law statutum potius interpretandum ut nihil operetur quà m ut iniquitatem contineat And yet notwithstanding all this that hath been said some of our Lawyers delivered their opinion being required by the King that this Statute for continuation of the Parliament during the pleasure of both Houses was not void in Law although by that Law the King was almost laid aside or used but as a cypher and little account made of his negative voyce in Parliament in respect of their new usurped power to make Ordinances so as the Parliament was changed from being the great Councel of the King and became as the Roman and Venetian Senate and
dederit se socium aut Capitancum subditis Regis nostri à quo puniri potest ut reus criminis laesae Majestatis nam talis peregrinus obstringitur ferè ut subditi propter hos socios suostembitur Majestatis etiam ipse peregrinus Qui seà ant in corpus aliquod isti volunt teneri cum corpore ergo pati debent Ayala de jur bel Christiani non siunt scrvi nisi militent aut auxilium praebeant Turcis contra Christianos tunc non Christianorum sed insideltum quibus se adjunxerunt numero habendi sunt Such cannot fall into the rank of just enemies who assist any rebels and come in at least as accessories without a solemne denunciation of war or a just cause Those are properly enemies L. 24. F. de Captivis qui nobis aut quibus nos publicè bellum decernimus caeteri latrones aut praedones sunt These strangers thus offending can claim no priviledge or benefit by any league or Laws but may justly be punished where they did offend for by a universal Law ratione domicilii vel delicti quis efficitur de foro alterius principis Habet Imperium Praeses Provinciae adversus extraneos hemines L. 3. F. de ossic Praesu L. ult F. de accus si quid manu commiscrint Alterius Provinciae rens apud cos accusatur damnatur apud quos crimen contractum ostenditur quod etiam in militibus est observandum The Laws of every Countrey give protection and some priviledges to strangers Protection draweth Subjection and Subjection Protection but in vain he calleth for the benefit of the Law who offendeth against the Law guilt abolisheth all honour and priviledge If a priviledged person according to the common saying cannot use his priviledge against one equally priviledged how much less against the Prince the giver of priviledges omnis dignitatis autor culmen In reos damnatos ex civitatibus nobis confaederatis animadvertimus L. 7. F. de Captiv Forum sortiuntur foederati in Civitate foederatâ and with this agreeth the Laws of nations and the Law of England for if an alien living in England who is under the Protection of the King and the Law Coke Postnati case Deut. 10. Levit. 20. commit treason his indictment shall be contra ligiantiae suae debitum The Divine Law so favourable to strangers giveth us warrant to punish strangers if they offend as well as others And therefore those who call themselves Souldiers of fortune and think they may come into any countrey where there is combustion and fall into any side like birds of prey without either warrant from their Prince or consideration of the justness of the cause find themselves often deceived and neglected by that partie which they did assist and little pitied whatsoever hapneth unto them whether they are slain or condemned to die either by the power or the right of the other partie There are lately risen up certain Politicians not so violent and in shew not so malignant as others who affirm either to flatter themselves or to deceive others or to put a scorn upon sacred allegeance and to give it cunningly a foil that when a stronger although a usurped power doth hold men under a yoak they ought quietly to submit and that all allegeance and former oaths taken for that purpose are at least suspended if not abolished as if they were to take for a rule alwayes the example of Issachar Genes 49.15 a strong Ass couching down between two burthens who did see that rest was good and that the Land was pleasant and bowed his shoulders to bear and became a servant unto Tribute Jerem. c. 27. c. 29. Or the extraordinary example of the Israelites submission under the yoak and captivity of the Chaldeans by the special and express decree of God and under his commination that what nation or kingdome would not serve the King of Babel he would visit that nation with the sword with the famine and with pestilence But we cannot here ground an argument for justifying obedience unto all Tyrants and invaders of our Countrey omnes enim omnium charitates una Patria complexa supergressa est Vigil Paterque natos nova bella moventes Ad penam pulchra prolibertate vocabat Filius sine seelere proditorem Patriae L. 35. F. de Religtos Ctusa 23. quast 8 c. 15. licet Pater suus sit occidit In omni tempore bellum gerendum sit pro defensione sua Patriae legum Patriae ne videatur homo deum temare Some learned men affirme Tyrannum qui per vim dominatur nullum habens jus ad illius Reipub. regimen posse à privato occidt Cavaruvies Cajetan alii Soto de Just jur ubi nullum aliud est remedium ad Tyrannidem illam tollendam etiam veneno proditoriè Others say quod qui sit invasor Regis vel Reipublicae justè intersicitur nam vim vi repellere licet quamdin talis Rempublicam sic obtinet perpetuam gern in Rempub. vim bellum others affirme quòd quando nobis non patet legitima possibilis via liberandi nos à Tyrannide seramus ut possumus Deo negotium quod omninò ejus est P. Martyabe C m Calvin Institut permittamus Vidimus quanta obedientia dominus tetrum serocem illum tyrannum Nebuchadnezzar coli voluerit non alia ratione nisi quia regnum obtinebat id autem ipsum erat coelesti decreto in solium regni impositum esse ac in regiam majestatem assumptum Calvin Instit. lib. 4. c. 20. p. 27. Hoc nobis si assiduè ob oculos obversetur codem decreto constitui etiam nequissimos Reges quo Regum authoritas statuitur nunquam in animo seditiosae cogitationes venient c. I shall leave this diversity of opinions in this poynt to the Judgment and discussion of others I do not require that men should strive against God and nature and with unseasonable and unadvised obstinacy provoke the wrath of the Conqueror for as soldiers are excusable when they have done the utmost that wit and power can perform and duty can exact in defence of a City so are Subjects if through apparent danger of death and devastation they render themselves and obey the enemy upon the best conditions that can be gotten Augustinus Vox est quodammodo naturae in omnibus ferè gentibus ut subjugari mallent hostibus victoribus quam bellie â omnifaria vastatione deleri Those thus compelled to take new oaths some Doctors hold them not guilty of rebellion or perjury and repute those latter oaths contrary to their former being injustly exacted to be void and at the most to be but a passive rather then an active rebellion But this cannot excuse men when they are tyrannically by the usurpation of any fellow Subject of theirs oppressed if they submit
nature L. 6. F. de Just ju Guiac ad tit F. de just jure sed quod detrahit non mutat non in totum recedit jus civile à naturali nec per omnia ei servit nam in eo in quo recedunt à jure naturali rationem habent saepè cum natura conjunctam ac plerumque publicae utilitatis quam naturae jus suadet anteponi privatae But now to reduce men to their primitive liberty and abridge Princes of these Regalities howsoever they were at first gotten were as Baldus saith revangare mundum to turn the world topsidown eripere clavem de manu Herculis and to raise a universal combustion Mores ubique jus gentium subegerunt Cujacius Plautus Plinius L. 1. F. de just ju Cujacius leges optimas aliquando in potestatem suam perducunt Imo vis Imperium quod primò erat nunc mores vocarentur Et jus gentium à naturali jure recedit quia non naturâ sed moribus nititur pleraque jura gentium naturali juri opposita sunt cùm ad necessitates utilitates temporum accommodata sint The manners of men and their customes are subject to change and vicissitude they have their ortum statum occasum but prescription is permanent Prescription and custome have the force of law and have wrought more changes amongst Princes and private men then positive laws could effect Tacitum Populi consensum proplacito judicio Populi haberi L. 32. F. de legibus Inveterata consuetudo pro lege haberi Cicero saith much of the Roman law more constat institut de jure gent. Diutini mores consensu utentium comprobati legem imitantur Much of our common law of England is customary law France est regie par custumes non par droit escrit fo rs en quelques Provinces par loix Romanes prins pour coustume Tillet Duck de usu juris Civilis alii Consuetudines esse jus commune in Gallia vel maxima ejus pars But all customes are not binding but such as are justè inductae legitimè praescriptae qui habent malam fidem tempore possessionis inchoatae continuatae nullo temporis tractu praescribunt vel in actionibus personalibus vel realibus dicunt Canonistae but the Civilians hold it sufficient if it be begun bond fide although not continued to the tearm required for compleating thereof * Bona fides non sufficit sed necessa rio requiritur Titulus etiam qui pessessori tribuat causam prascribendi ubi jus commune contrarium ei fit vel praesumtio probabilis adversus eum sit nisi tanti temporis allegetur praescriptio cujus contrarii memoria non existit Decretal de Praescrip cap 1 Habet velut longae possessionis praerogativam ex eo quod diu usus sit L. S. F. De Itinere This I pass over as also what is required for the interruption of the course of prescription and custome Prescription and custome can raise a good title between Kings and nations as well as amongst others for ex Regum Populorum longa patientia sic ex praesumpta derelictione cum immemoriali temporis possessione dominia transferri by the laws of nations as the Doctors affirm quia per usum temporis immemorialis ïnducitur praesumptio juris de jure habet vim pacti privilegii legis Although some are of opinion that it was brought in by the Roman laws but long before those laws it was in use for Jephthah did object to the King of the Ammonites Judges 11. the possession of three hundred years and Sulpitius the like against King Antiochus and so others Si jure civili excludantur actiones privatae civiles ligitima praescriptione Livius lib. 35. quid non etiam belli causae actiones armatae cum sit absurdum ut nec post secula desit armorum controversiarum bellicarum praetextus justus Gentilis Grot de jure belli The Roman Emperours have been justly barred in many cases from their Claime by Prescription It is the common opinion that Princes and other States have justly prescribed and thereby acquired their supream Power against the Roman Emperors in respect of the presumed tacite consent of the Emperors never making claim nor giving them any interruption for a very long time By the law the longest time given to the Church was but the prescription of one hundred years that time being elapsed the claim and rights of the Church ceased and were reputed obsolete Centum annorum curriculo hujusmodi actionem evanescere L. 23. Cod. de Sac. Eccl. Novel 9. Romana Ecclesia gaudente centum annorum spacio vel privilegio Centum annorum lapsu exceptionem Ecclesits opponi sancimus Id vero quod est de centum annis mutatum est in quadraginta pro tollendis Ecclesiasticis actionibus Novel 131. c. 6. Thuanus lib. 101. Molinaus alii Episcopi Galliae se semper tutati sint adversus hujusmodi conatus Curiae Papalis praescriptione jurium libertatum Gallican The Roman Emperors as we perceive have lost very much of their dominions and Empire through dereliction and negligence which other Princes States and Cities have gained or usurped and now to seek the recovery thereof would cause their endeavours to appear as unreasonable and fruitless as formerly their diligence or power was defective L. 1. F. de usucap Bono publico usucapio vel praescriptio introducta est ut aliquis esset finis litium ne semper dominia incerta essent for it is against reason as well as against Peace which the laws do more favour then any mens particular loss especially through their own carelesness that no bounds should be set to mens sutes and claimes but controversies remain immortal CHAP. XVI Against the pretended Power of the people to Elect their prince or to depose him Of the Norman conquest of England and of Leagues between Princes and of Aides given to Subjects in Rebellion against their Soveraign AFter our adversaries have made their allegations with some verbal flourishes as that there is a natural right in all Societies to the power of Rule and from the Societies and Communities of People it is derived to one or more Persons and although Supream and universal Power be acknowledged to be in Kings yet not so as to exclude the whole State of those Societies conjoyned and bar the influence of that power which they have originally over Kings Then for the proof of this they do offer one reason which is that every independent People if they have or can find any such being driven from their Countrey by any accidents and scattered upon the face of the earth being forsaken by those who had the rule and power over them if they unite again they have a natural right unto Supream authority and may constitute such form of Government as pleaseth
a long time the King that there was great danger they would have raised an Aristocracy or several petty Principalities so lofty was their carriage towards their King which in time would have strangled the Monarchy and all under the pretence of the publick good which drew on that long and destructive war called the Barons war and made it the more plausible and popular After these combustions ended and the King the Lords and people were reduced to reason and moderation which often was wanting on both sides then the Statutes made in the time of King Edward the First and Edward the second had these words Statutes made by the King in Parliament at the request and petition of the Commenalty with the assent of the Prelates and Pears And so in the Fifth year of Edward the Third at the instance and special request of the Commons with the assent of the Prelates and Peers we have ordained and established and so in the succeeding raign of Richard the Second and in the first of Henry the Fourth Thus did the force and efficacy of our Lawes proceed from the Kings Legislative power acting by and with the concurrence of the three Estates in Parliament contributing their assistance according to their respective duties and the trust reposed on them This concurrence doth serve excellently for the direction regulation and in some respect for the qualification not for the diminution but for the support of the Kings power and rights The absoluteness and generality of this Regal power being also in many cases often restrained in the administration of Justice in the inferiour Courts of Justice by the Common Law of England and by the Lawes and customes of other Kingdomes And therefore the assistance and concurrence of all the Estates in Parliament cannot amount unto the raising of any coequality or competition of power the influence of the Soveraign power is that which giveth life to the making and to the execution of all Lawes both Houses of Parliament acting according to their duties and not exceeding their bounds the rights and prerogative of the King is neither restrained nor obscured but guided strengthned and carried with greater vigour and Majesty for his and the Peoples most good and security If our Kings had any co-partners in the Legislative power or were less in Parliament then when they were out our Judges have been much out and deceived him and others in affirming oftentimes to the Kings that in no time they were so high in their Royal estate as when they sate in Parliament The Canon-Lawyers say the Pope is greater when he sitteth in a General Council in respect of the amplitude of knowledge and the spirit of discerning After the Romans had transferred all their Supream power to their Emperours yet did the Senate afterwards make divers Lawes called Senatus consulta which were often concomitant or subsequent to the Imperial Edicts yet this was never held to be a conferring or communicating of any part of the Legislative Imperial power no otherwise the Kings of France do grant to the Parliament of Paris when their arrests concurr with the Kings Edicts which are there usually ratified Cujacius Pet. Faber Semest lib. 1. cap. vult Optimi Principes non dabant ullam constitutionem sine authoritate sententia Juris-consultorum Edicta Principum Romanorum sic Regum Galliae plerumque subsequebantur Senatus Consulta Quod Principi placuit legis habet vigorem leges condere soli Imperatori concessum est legis interpretatio solo digna Imperio est Imperator solus conditor Interpres Legum est Institut Jura nat gens Lust Cod. de legibus Tit. F. de origine Juris Lib. Feud constitut Lethaeri Fred. Imperator licet Augustus Caesar constituit viros prudentes ad jus interpretandum ut major juris authoritas haberetur The Emperours since have made their Lawes hortatu consilio Archiepiscoporum Episcoporum Ducum Marchionum Comitum Palatinorum caeterorumque Nobilium Judicum yet this was never holden to be a communicating of their legislative power Long time in the French Monarchy Lawes and Edicts were made by the King per suum magnum Concilium as in England and so were causes Civil Criminal and Fiscal determined and judged by our Kings or his Council or by his delegated poer to others before the Courts were established at Westminster as appeareth by our Histories and Records The three Estates in France and Spain did never in the former times when they were most in use and power challenge any part of the legislative power neither did their Historians and Lawyers ever grant it to be in them for ought appeareth Bodin doth acknowledge that in England the excellent institution and use of Parliaments hath longest continued De. Repub. and saith that legum rogatio probatio non arguit Imperii majestatem licet autoritatis speciem Ordines Angliae autoritatis quaendam habeant jura Majestatis summum Imperium est in Principe And so a learned Hollander Grov de Jure belli lib. 1. C. 3. no slatterer of Monarchy saith they are greatly deceived qui existimant cùm Reges acta quaedam sua nolunt rata esse nisi à Senatu vel alio caetu aliquo probentur L. 8. F. de Constitutionib L 1. Cod. de legib partitionem fieri potestatis The supream Senate is as the Emperour in the Golden Bull calleth the Princes Electors partem corporissui columnas latera solidacque Imperii Bases jus dandi suffragii in Comitiis Imperii Germanici non trahit secum majestatis communicationem cum majest as indivisibilis sit nec Electoribus Principibus aut Statibus Imperii communicari poterit Tamen nihil majestati detrahitur si in partem solicitudinis Imperatoris invocentur exemplo veterum Imperatorum Romanorum qui et si habuerint summam potestatem ut quodcunque Imperator Edicto statuit legis habebat vigorem nihil tamen magni ponderis sine consilio consensu Senatus expediebant * Arumns ad aur bul non obstat quod dicitur in L. 1. F. de constitutionibus Quod Principi placuit legis habet vigorem quia sequitur in fine legis non quiequid de voluntate presumptum est sed qùod concillo magistratum suerum Rege auâ—â—ritatem praestante habita super hoc deliberatione tractatu recle fuerit definitum Bracton Fleta L. 8. Cod de Legibus Bartolus ali L. 1. F. de legibus Moreover long before the Empire was established in Germanie when the Roman Emperours granted unto diverse Princes and States of the Empire that without them and that form by him prescribed lawes should not be made or held effectual nisi supradictà formà observatà ita ut universorum consensus nostrae serenitatis autoritate firmetur c. It was never holden by the interpreters of the lawes that the Emperours did or could by his grants
passe away or communicate any part of their inherent individual legislative power The several estates conjoyned in Parliament as the Lawyers say in other cases do assist non per modum limitationis sed per viam ministerii necessarii quia leges condere est maximus meri Imperii gradus de reservatis Principis in signum supremae potestatis Iusta legitima lex est quae processit ex civium concessione voluntate spontanea Lex est communis spensio Reipub quia in legum observationem quilibet Civium spondere videtur This rule in law ought to have place in all Monarchies as well as in Common-wealths and free States it being so agreable to justice and the preservation of all mens rights Yet our Statutes made in Parliament are the proper acts of the Kings legislative power with the necessary assistance of the three Estates sed nec communicato nec diviso Imperio To communicate he ought in Counsel but not communicate his supream rights of Empire for his Empire is not so much permitted by God to his absolute power as it is by him committed to his faithful care for the preservation thereof and the Peoples welfare and unto him he must give an account CHAP. XVIII Of the Kings Prerogativ ' Our Innovators do not rest at the quarrel against the Kings legislative power and other his Regal rights but many of them fly at his whole prerogative The very name is odious unto them through ignorance or malice The prerogative of the King is supported by the Common law of England and it doth often serve to support the Law and the rights of all men both of them do give and receive vertue and strength to and from each other The Emperours in their Lawes say Authoritate juris penà ct nostra authoritas The Regal prerogative Ld. Chanc. Sir Edward Coke postnati is called Lex Coronae and it hath ever been reputed a part of the Common Law of England and so lex Ecclesiae Anglicanae lex terrae and this lex terrae doth as formerly our regular Parliaments ever did fence and inclose the prerogative within its just limits as well for the safety and preservation thereof as for the welfare of the people which being the supream law is the scale and measure of the Kings prerogative For there is great use of the Kings prerogative especially when the ordinary course of law cannot afford that help or at least so speedily as is necessary not only to prevent injustice and wrong unto private men but also the prejudice or damage of the Common-wealth peradventure irremedial Tacitus Oftentimes tarda sunt legum auxilia But as the same author saith non utendum Imperio ubi legibus agi potest according to the rule in law qui communi auxilio munitus sit non debet uti extraordinario remedio The prerogative is not to cross and suppress the ordinary course of law and Justice if it may be avoided to the prejudice of the just rights and liberties of the people Psalm 99. the Kings strength loveth judgment he doth temper his power with justice when the ordinary course of law can be effectual the supream absolute power ought not to be used There is often use of the prerogative ex vijustitiae for moderating the rigor and for suppressing the abuse of diverse penal lawes made for terrour ut metus non poena ad omnes perveniat not to be preposterously used as snares to catch men by those Informers who often become the Catterpillars of the Common-wealth and are more evil then necessary whereas the best of them are accounted in the number of necessary evils Instruments these are made for the draining of mens purses not for correction of their evil manners when the penalties exacted seem rather as a price set upon offenses then a due punishment of them Vbi omnis domus delatorum interpretationibus subverteretur Tacitus L. 4. Cod. de Delatorib utque antehà c flagitiis ita tunc legibus laborabatur graviora remedia quam delicta erant omnibus notorium sit hos nunciatores execrabiles esse qui consequendi praemii causa à enunciant adeò turpe est delatoris nomen L. 3. Cod. de Injuriis ut injuriarum actione tenetur qui hominem delatorem appellat Penal lawes thus executed prove oftentimes as pernicious and raise as much hatred against the Prince as the overstraining and abuse of his prerogative or the exercise of an arbitrary power in government * As was the case of Empson and Dudley in the time of Henry the Seventh Corielanus was banished Rome ut nimius exactor Legum Halicarnase 8. summum jus summae crux such men for their reward are often made publici odii piaculares victima But if a King hath not a supream power his government will be very defective and he is rather to be esteemed a titular King then a King invested with Regal Soveraignty although it is necessary to have this regal power restrained in many cases by just lawes and by the prudence of Judges in courts of judicature for the good of both Prince and People Ea demùm tuta diuturna est potentia Valerius Maximus lib. 4. c. 1 quae viribus suis modum imponit legitimis vinculis constringendo ut longius à licentia ita propiùs ad benevolentiam as the wise Spartan King said And yet they are much deceived who think Kings can be never too much restrained and esteem the most limited power the best and safest whereas the best limited power and most likely to preserve peace between the King and his Subjects is that power which as much as may be is regulated by the foundest most perfect and equal lawes between the Prince and the people For the ancient wise men philosophers and Law-givers did not approve of those governments as the best where the supream power was most restrained but where the justest lawes were and the most care for the execution of them The liberty necessary for the Common-wealth Guicciardine is that liberty which serveth as the handmaid of Justice and is to it applyed and appropriated Moderata libertas omnibus salutifera Livius immoderata omnibus gravis possidentibus eam periculosa The Romans who were most careful in preserving just liberty and enemies to unlimited power and arbitrary government Livius Grot. de jure belli were oftentimes constrained to constitute a Dictator with supream authority exempt from the legal forms and strictness of positive lawes who in the time of his Dictatorship by the same power did all acts as a King neither could any other make them void and the reason they gave is ne capiat Respub Livius lib. 2. detrimentum Creato Dictatore primùm Romae ut intentiores essent ad dicto parendum neque provocatio erat ueque ullum usquà m nisi in diligemia parendi auxilium And may there not oftentimes be as