to Princes Leagues are made for the conservation of peace mutual aide commerce and trade They have more of reality in them then to be accounted but as meer personal obligations they mutually oblige as they mutually benefit the Princes their Successours and subjects And therefore to hold that all Leagues are void by the death of those Princes that made them is a great and dangerous errour Imperator percussit foedus videtur Populus percussisse Romanus foedere continetur Seneca The mutual benefit of both Prince and People is conjoyned and involved one neither can nor ought to take benefit by them with the excluding of the other When Henry the Third of France was dead the League made by him with the Switzers did continue in force Thuan. lib. 97. and upon this reason quia non tam cum Henrico quam cum Corona Franciae contraxisse quae nunquam intermoriatur ita Rex dicitur nunquam mori sed mortuum Regem vivo proximo regnum tradere These contracts which are juris Gentium juris publici quia ex publica causa sunt as are leagues do bind each other and their Successours in many cases Baldus Peregrin de Jure Fisci Gentil de Jure bell without express mention quia facta sunt non nomine proprio Principis sed sub nomine dignitatis suae Reipublicae sunt de natura consuetudine ossicii dignitatis Regiae in figura magis Principatus quam suae propriae personae Tenentur successores aut numquid nihil est cautio ista toties usurpata in foederibus Ayala Grot. de jure bel Tenentur successores per has publicas Conventiones quae non nomine proprio sed Reipub. incuntur quae aequè repraesentatur per successores ut per cos qui sunt hodiè It were most unjust and absurd to deprive Princes who are the League-makers and principally concerned in them of the benefit of their leagues by their Subjects rebellion who to receive any benefit by Leagues or Lawes is contrary to the intention of all who make them and destructive to the Majesty and security of all Monarchies and States Beneficium quod habeo propter te Gentil de legationibus non possum uti contra te Cum Praedonibus rebellibus non est jus legationis foederum Delinquendo non acquirenda sunt jura nam jura violantibus jus non violari sed potius redâ—i si non praestetur In talium scelerum noxios nullam vim injustam esse The Romans complaining of the injuries they had received from the Hircani who answered the Romans as did the Sabines That they had made a League wich Tarquine the Roman King whom they having deposed and abolished the Regal Government Dionys Halicar Livius those Leagues were determined with the People of Rome Although the league might be in force with and for the benefit of the King expulsed and his Heirs and Successors Grot. de Jure belli cum Rege initum foedus manet etiamsi Rex aut Successor regno à subditis sit pulsus Jus enim Regni penes ipsum manet utcunque possessionem amiserit The Emperour Justinian answered the Vandals Procopius requiring the benefit of a League that he would break no league with them neither make war against them but against the Tyrant and Usurper who had dispossessed their lawful King and held him in captivity The Roman General Quintus answered the Usurper of Sparta Livius We have made no league nor friendship with thee but with Pelops the lawful King for the very mention of Peace or amity with a Usurper our ears cannot endure And thus when Spartacus such another had gotten strength and made wars by the help of a rabble of thieves against the Romans he sent to Cressus to make a league with him but he rejected it with much scorn as most unworthy the Roman name Tacitus quanquam tunc ingentibus bellis labasceret Respub non tamen datum erat Spartaco ut pacto in fidem reciperetur non alia magis sua Populi Romani contumelia So the Emperour Tiberius was exceedingly offended at the presumption of Tacsarinas the great African Robber for sending Ambassadors unto him Tacitus Florus Indoluit Tiberius quod desertor Praedo more hostium ageret for such are in the rank of those qui foedus humani generis ruperunt Some are of opinion that in an Aristâ—â— aâ—â—cal or Democratical Government if civil war happen both parties seeming to be of equal right and ballance as in that between Caesar and Pompey the Guelfs and Gibelines may send and receive Ambassadors for they are not in the condition of Rebels etsi pereas dissentiones Respublica laeditur L. 21. F. de Captivis non tamen in exitium Reipublicae contenditur qui in alterutras partes discedunt non sunt vice hostium as was said before when two are in competition for a Crown Yet are there diverse examples of Princes and States that in this case would decline all dealing with either party unless for their own interest and advantage and answer as those of Marcelles did unto Caesar in his war with Pompey that they being the Allies of the people of Rome it did not belong unto them to enquire which had the justest cause If either of them would come as friends to Marcelles they would so receive them but if either of them came in any hostile manner they should find from their State no friendly complyance They were not obliged to aid either Caesar or Pompey although they were the Allies and confederates of the Romans neither ought any to have engaged themselves in that pernicious faction of the Guelfs and Gibelines unless it had been to suppress them The case was more ambiguous in the war between the Houses of York and Lancaster yet so as we may not take for a rule that shift used by Lewis the Eleventh who being required by Edward the Fourth to send him aid against Henry the Sixth according to a former league between them answered that the League which was made by him was with the King and Kingdome and he held himself obliged to aid him onely unto whom the Kingdome did adhere Comines Bodin and declare for their King like that saying of an Earl taken Prisoner at Bosworth field who being demanded why he took Arms for the Usurper Richard the Third answered that if the Parliament had set the Crown upon a stock he would have fought for it Camdens Remains The Parliaments in those times did not take on them to dispose of the Crown and so did the Parliament answer Richard Duke of York father of Edward the Fourth when he pressed them to declare his Title against Henry the Sixth Those who affirm that the change in the State and Government doth dissolve former Leagues seem to affirm it upon such change as is fairly effected
King and his Subjects which cannot be dissolved by any law or custome That Kings cannot alienate their Kingdomes nor Subjects renounce their allegeance nor bar the next successour of the Crown Such is the inseparable relation between the King and his Subjects that as they cannot renounce or withdraw their allegeance from their Soveraigne Bodin Principis aeterna autoritas in subditos so cannot Kings alienate their Kingdomes or any part thereof although they are not restrained by positive Laws yet are they by a universal Law not made but risen up in the foundation of all Kingdomes as the Lawyers say Baldus Jason Casan Cat. glor mundi alii generali omnium Regnorum lege cum ipsis regnis nata quasi jure Gentium Lex fundamentalis immutabilis cum ipsâ rerum naturâ unà viget consenescit interiit Rex qui in sua Coronatione juravit jura Regni sui honorem Coronae illibata servare postea nihil agere censetur si quae jura bonáve Regni sui alienaret Decretal de jurejurando c. 33. Cujac ad dic cap. 33. etiamsi jusjurandum interposuerit de nunquam revocanda alienatione liberum tamen ei esse quandoque revocare praevalere prius juramentum quod fuit legitimum posteriori quod illegitimum est The relation between a King and Subjects maketh a union and reciprocation so strong that there can be no admittance of a separation Correlatum cuilibet relato respondet uno posito ponitur alterum in correlativis idem judicium and what is disposed in one is so in the other when there is the same reason for either And so cannot a King and Parliament and all the Powers in earth bar the lawful Successor from the rights of Soveraignty the individual and sacred rights of the Crown Constagio del union di Portugal Thuan hist neither bind nor limit the succession Henry the Cardinal afterwards King of Portugal having no issue and seeing diverse in competition for the Crown granted a Commission to some of his own Subjects to determine the right of Succession after his death and unto some others he gave another Commission to govern the Kingdome after his death until the right of the succession was determined Both these Commissions with the opinions of his own Lawyers for their justification were soon after his death over-ruled by the sword and were also held void by Law because he sought to raise a body in his Kingdome without a head and would praire successorem suum and raign after his death Lib. 6. F. de jurisdict L. 13. F. de jurisdict for by his death his jurisdiction and authority was determined and his Commissions void Potestas delegata morte delegantis finitur No Magistrates can give Commissions for acting any thing after their death neither upon a day which falleth after they are out of their authority whereupon it is declared quòd qualibet dispositio censetur facta eo tempore in quod confertur Baldus alii decis Rotae Rom. 240. 193. Tom. 3. Farinacii nee valet quae in id tempus procedit quo res non erat amplius disponentis quia paria sunt aliquid fieri tempore inhabili prohibito vel tempore habili concesso conferri in tempore inhabili prohibito The Commission for determining the Succession made the Portugals who were parties Judges for they were of the material part concerning which the controversie was and whatsoever they determined was void Lult F de Jurisdict l. ult Cod. si d non competenti Judict non paretur jus dicenti si supra suam jurisdictionem jus dicere velit nemo plus juris ad alium transferre potest quam ipse habet The Kings Commissions and Mandates as also all Offices unless it be those which by law are excepted are void by his death especially those which are granted in vim justitiae administrandae Mandatum Principis in vim justitiae datum Decis rotâ— Romanae Cassaneus ad consuetud Burgund alii Decretal de rescriptis c. 5. C.S. Tamen si cuiquam morte Principis expirat secus si in vim gratiae Sed gratia data ad beneplacitum concedentis per ejus obitum per quem ipsius beneplacitum omnino extingnitur eo ipso expirat And if he cannot bind himself then not his Successors nisi in casibus à jure consuetudine permissis sunt de consuetudine Principatus de natura officii Regii as the Lawyers say By this we raise a doubt concerning the validity of many matrimonial contracts made by Princes whereby they endeavour to bind or alter the succession of the Crown which is not ruled by those lawes which are for private mens descent and inheritance Whether use and common practise may justifie these contracts of Princes I will not dispute Gail observat lib. 2. Pro bono pacis inter Principes componenda vel tuendae tolerari matrimonium quod alià s erat illicitum Cujac Comment ad Decretal tit de Desponsatione Impuberum cap. 2. unde versus Pax ut servetur moderamen Juris habetur cap. 2. Pacta Statuta de mutua successione in casu deficientium liberorum masculorum inter Principes Comites Barones Imperii in usu esse frequenti consuetudine hominum memoriam excedente confirmata valere We find not the like Laws or customes in other kingdomes except the Law Salick in France for the common opinion is that Statuta excludentia faeminas ex haeredationibus odiosa sunt Pactum in dotali instrumento ut filia contenta sit dote nullum ad Paterna bona regressum haberet L. 3. G. de Collationib juris autoritate imprâ—batur Et pactum de non succedendo jure civili improbatur Si Pater instrumento dotali comprehendit filiam ita dotem accepisse ne quid aliud ex haereditate Patris speraret eam scripturam jus successionis non mutasse constitit privatorum enim cautionem legum autoritate non censcri leges non mutare Lult F. de suit legit haered By these contracts Princes please themselves for a time out of a desire to advance some designs and afterwards repentance and dissentions do often follow Unto this may we add those accords and transactions between Princes for exchange and alienation of some part of their dominions which come by descent from their Ancestors These alienations have commonly the like success as the former yet are they much to be favoured when they pass between Princes upon equal tearms and are for the procuring of peace and ending of controversies the consent of the Subjects on both parts concurring nam Dominus sine voluntate vasalli feudum alienare non potest sic Princeps subditos suos alienare non potest quia non tantum praedia sua domini jus L. 2. tit 34. de Feud sed sic ingenui homines alienantur
gladius acutus and in Job flagellum linguae The other means used by Incendiaries is the publishing of Prophesies or making use of them to amuse the people and keep them in the expectation of a change New Religions were brought into Rome by certain Books of Prophesies which were publickly burned It was a capital Crime by the Roman Law in him * Livius L. 30. F. de Poenis Qui aliquid fecerit quo leves hominum mentes superstitione Numinis terrerentur and so was it also in them †Paul sent lib. 5. lit 21. 23. tit Cod. de malesic Mathem Leo descrip Africae Qui divinandi artem exercebant aut Vaticinii libros habebant And thus by the Canon Law and also by Mahomets Law Magiam Cabalisticas artes lege Mahometica vetitas esse The Magicians and Southsayers and those who profess the knowledge of things to come are more dangerous to a City saith St. Hierom then fire especially those who consult of the state of the Common-wealth or of the life and death of the Prince * L. 8. Cod. de Mathematicis vel Arioles atuspices vaticinatâ—tes consuluit cum eo qui responderit capite punitur Paul senten lib. 5 tit 21. Cuiac ad tit Cod. de Maleficis Qui de salute Principis summa Reipublicae Mathematicos consuluit he was punished by death And by that Law the crime was equal in both talia prohibita tam discere quà m docere in those who did seek to learn as well as the Masters of that Art †Caus 3. quaest 5. c. 9. Deut. 18. Lev. 20. 19. The Canon Law made all those infamous Qui ad sortilegos Divinos concurrunt infames sunt nec accusatores nec testes esse possunt The divine Law saith there shall not be found amongst you that useth Divination or is a Wizard they shall be put to death Seek not after Wizards to be defiled by them * Confess lib. 7. c. 6. Mathematicorum fallaces divinationes impia diliramenta saith St Austin Who so are desirous to search into these vain and impious Prophesies and to enquire of things to come the Devil is ready to answer their curiosity with strong delusions Lipâ—â—i monita Posit quae turbant animos ad novas aut magnas spes impellunt Nunquam curiositas cupiditas conjuncta cum avaritia superstitione cognoscendi res futuras Aelian var. hist lib. 3. c. 3. neque Gentilibus neque iis qui Christiani perhiberi voluerunt impunis vel innoxia fuit The raisers of a dangerous sedition in York-shire Heyward in Edw. 6. in the reign of Edward the sixth took their rise and encouragement from a dark and deceivable Prophesie and understood that to be the time to accomplish that Prophesie which did fortel the time should come when there should be no King and that the Nobility and Gentry should be destroyed and the Realm ruled by the Commons holding a Parliament in commotion Thuan. lib. 125. The Duke of Savoy not to condescend unto equal conditions of Peace with Henry the fourth of France was drawn by a Prophesie that at such a time there should be no King in France which had something of truth for the King of France was that year in Savoy and in the pursuit of his Conquest thereof And yet notwithstanding such is the desire of men to know things to come that these Astrologers and Southsayers gain more credit by foretelling one truth then they do discredit by ten falsities whereas others if they lye in one thing are scarce ever believed in any truth they relate Religion and reformation as was said before have ever been pretended by those who have had pernicious designs and factious and ambitious men have often taken hold of the dissentions concerning religion to work the people to a compliance with them These men convert Religion under false and specious pretences into faction or use religion like a stalking horse as did Jerobeam and Mahomet Qui nervum potentiae suae in novae Religionis formulâ ad affectus hominum inflexâ ponebant * Jerobeam usurped and Israel rebelled against the house of David Jeroboam changed the publick service of God and also the place from Jerusalem to Bethel and to Dan for if the people went up to Jerusalem to sacrifice he feared their hearts would turn to Rehoboam their King and the Kingdome return again to the house of David and he made Priests of the lowest of the People which were not of the sons of Levi 1 King 12. The changes in religion have often wrought great changes in the minds and manners of men whereupon the saying is grounded A new religion and a new Prince or government The Popes Nuncio hearing Francis the first of France use sharp speeches against the Pope and saying he would withdraw his Subjects obedience from the Sea of Rome in things of Ecclesiastical Discipline the Nuncio replied that his Majesty would be a loser thereby as much as the Pope for a new Religion if it took the People in the head would draw them on to the desire of changing their King or Government Unity in Religion being the chiefest pillar that upholdeth the joynt obedience of the Subjects to their Soveraign and to the Lawes of their Countrey â—or where they are not united in their Religion they are not united in their Obedience to their Soveraign neither in their affections to their fellow subjects but are ever apt to fall into seditions and of this there are many examples in this latter age Not to come nearer unto us I will rather choose to relate that of the Moors in Spain who notwithstanding all the endeavours of the Emperour Charles the fifth and his Successors could never be made good Subjects or Christians they only pretended a desire of liberty of Conscience which they thought they could never obtain unless they had a King and Lawes according to their will Fonseca of the expulsion of the Moores whereupon they entred into a most dangerous conspiracy and took up arms The Proverb was true never of a good Moore a good Christian Their King said of them that they would never be faithful to God who would never be faithful to their King Hist of Spain Curtius It was truly observed of such inconstant People Meliùs vatibus suis quam Regibus suis parent a new Apostle is more precious then King or Lawes How often Monita Pol. saith Lipsius of old and of late times to the great peril of Princes and Common-wealths Pravae aut novae religionis titulo populum concitatum fuisse unus aliquis concionator sanctimoniae famâ telo armatus eloquentiâ aliquâ ornatus quid non patrat Of such men the Prophets often gave warning who flatter the people and prophesie lies in Gods name For this cause of Religion men become wolves to each other in this fury they abandon all respects civil
charge of raising Sedition when the malice hath been greater then the matter and no other special crime could be found So Saint Paul was accused for being a pestilent fellow and a raiser of sedition Tertullian saith Christians in his time were called hostes publici enemies of all Common-wealths and Suetonius doth most impiously say Judaeos impulsore Christo assiduò tumultuantes In vits Claudii l. 15. hist and so Tacitus saith that Nero Reos quaesitissimis poenis affecit quos per flagitia invisos vulgus Christianos appellabat unde quamquam adversus sontes novissima exempla meritos miseratio oriebatur tanquam non utilitate publica sedin saevitiam unius absumerentur thus happeneth to all a like measure who lye under the publick hatred It is true that the change of Religion in Germany and in other parts of Christendome was driven on in a tumultuary course and was not wrought in such a calm as it was in England where these changes went formerly in an orderly and quiet passage under the conduct of a Royal power and a prudent Council of State Religion changed as it were by degrees and insensibly all things seeming to remain in the same course and state as before and as one observed it was in those times so carried with us ut Catholicam religionem sine sensu Plebs exueret cultu in specie eodem manente The Parliaments in England in those times gave much countenance and authority to those alterations with the People The Kings and Queens would hardly have effected it Regiâ manu notwithstanding their power and the love they had of their People The Parliaments were wrought not onely to ratifie Riba Jinera del Schismad Ingla terra but to be petitioners for those changes in Religion A stranger writeth that when Queen Elizabeth came to the Crown religion was not altered with violence and bloud as in France Scotland and the Low-countryes but changed and established by Laws by Royal mandates and with Parliamentary concurrence which saith he hath been a subtil and powerfull invention armed with the authority of Prince and Kingdome for the sure rooting and settlement of sects and heresies These quiet alterations formerly were even marvellous in our eyes Lord Chanc. S. Albans of the union between England and Scotland and as it were a selicity peculiar unto our nation as was said of that change upon the death of Queen Elizabeth and the coming in of King James who acknowledging to the Lords of England their great loyalty in his coming to the Crown said that it was a success above the course of nature to have so great a change with so great a quiet In Germany France Scotland and other parts of Europe many of the Contrivers and Actors in the reformation of religion did neither sapere ad sobrietatem neither agere cum sobrietate especially when they were strongly opposed and perceived divers designs for their destruction for some of them had a mixture in their heads of the Anabaptistical leaven and were infected with that fury Insomuch as Bucer a man of great learning and moderation would often say unto them that in their great heat of zeal in rectifying the service of God and reforming the Church good order and discipline failing amongst them the tumultuous and seditious persons were not chastised neither any order and decency in the service of God observed and therefore their laudable endeavours would not long last neither happily succeed for the discreet and moderate men amongst them and those in greatest authority were oftentimes compelled to suffer many enormities and outragious actions lest by enforeing correction and discipline they should lose the assistance and affection of their own party Tacitus The Captains durst not take the boldness to punish as the fouldiers did to offend voluntary obedience maketh the command and power weak as is that power which cannot subsist by its own streng Before Luther was in his grave and when his reformation was but in the infancy some who seemed or were reputed his disciples brake out of their pretended integrity through an over zealous and irregular desire of reformation into abominable opinions and furies tending to the destruction of all Goverment in Church and Common-wealth And Luthers doctrine also meeting with divers of weak and turbulent Spirits over greedy of reformation and abounding with wild zeal or Spiritual pride all the precious liquor they received turned into gall and vinegar and from these did seeds soon spring up which raised a swarm of * These Anabaptists then started up and declared that they had speech with God who commanded them to destroy all the wicked and to taise a new world in which the godly onely should live and reign Sleidans Comment lib. 3. Fox Acts and Monuments Anabapâ—iâ—ts and other fanatick Sectaries which made themselves a new Gospel of Licentiousness and Rebellion and scorned Luther and his doctrine at last And although after they had done much mischief they were suppressed yet they scattered such seeds as the fruits thereof do now exceedingly afflict the Church and cause great disturbance which to plous men is the greatest persecution August de Civit Dei l. 18. c. 51. for this afflicteth their hearts and souls qui patiuntur hanc persecutionem non in corporibus sed in cordibus est persecutio intrinseca extrinseca Caus 7. quast 1. cap. 48. By this we may see what hath moved Princes and Common-wealths not to tolerate divers religions or any thing different from the religion established Platina Mahometanaem sectam latè sparsisse se dum religionis nostrae capita inter se diffident sic factum est ut ad Mahometanos partìm vi partim spome deficerent populi hinc amissam Ecclesiam Antiochenam Alexandrinam Hierosolymitanam August de Civ Dei lib. 18. cap. 51. Multi volentes esse Christiani propter eorum diffentiones haesitare coguntur multi Maledici in his inveniunt materiam blasphemandi Christianum nomen quia tales Christiani appellantur The Devil saith Saint Austin doth stir up Hereticks who under the Christian name do resist the Christian doctrine The Romans had ever a circumspect eye and carried a severe hand on those qui nova sacra peregrinos ritus introducebant and they ordained Valer. Max. ne qui Dii nisi Romani Dii neque ullo modo quà m patrio colerentur * By the Divine law he that sacrifi ceth to any god saving to the Lord onely shall be destroyed Exod. 22. The Prophet or dreamer shall be put to death who doth intice to the service of other gods Deut. 13 5. and the ichabitants and the city shall be destroyed that serve other gods Deut. 13.15 16. For as Livie saith the wisest and most skilful in all divine and humane lawes held nothing so forcible to overthrow Religion as when the Divine service is celebrated after some strange and forreign course and not
according to the antient custome of their Countrey Which consideration moved Numa Pompilius in the first foundation of their Common-wealth to provide ne quid juris divini negligendo patrios ritus peregrinosque adsciscendo turbaretur Constantine made a Law that all Christians should use the same Temples and not have different assemblies And other Christian Emperours did very strictly command * L. 29. Cod. de Episcop Clericis L. 4. Cod. de summa Trinitate L. 8. S. 5. Cod. de Haereticis ne de Religione vel Doctrina disputent velconciliabulis praesint vel turba concitata simpliciorum animos seducant Nemo cujuscunque conditionis de side Christianâ publicè turbis coadnnat is tractare conetur ex hoe tumultus perfidiae occasionem requirens ne facultas tribuatur publice vel privatim convocandi coetus de haeretico errore disputandi perversitatem facinorosi dogmatis adferendi nemo hujusmodi libros habere sacrilega scriptorum monumenta andeat servare Qued siquis de his criminibus fuerit deprehensus perpetua deportatione damnetur Variety in opinions of religion causeth several conventicles evermore dangerous in a Common-wealth as we shall hear hereafter and from variety in religions they fall into factions and from all religion into Atheisme Ex schismate haeresin nasci ex haeresi plerumque Apostasin Therefore Julian the Apostate called from banishment the Donatists and other Hereticks and permitted them and all others who professed the Christian religion to maintain what opinions they would one against an other that by their diffentions the Christian religion might be weakned and Paganisme the better established For it fareth with the vulgar as with the Epicurean sect of Philosophers grosse witted and sensual men who when they did see such great and continual strife concerning the Diety took the shorter way by denying it altogether then to feigne as others did many uncertain gods and so fall into inextricable labyrinths and contentions with other Philosophers which could never have any certain determination and end The Jews are permitted the free exercise of their religion in some Christian countries which is denyed to those they do account Hereticks and Schismaticks and the reason is given because they pollute and violate the Christian religion which they professe and disturb the Peace of the Church and Common-wealth where they live Haereticorum Aquin. Alciat alii qui profitentes ipsum Evangelium illud corrumpunt infidelitas est omnium gravissima De his qui de illa gente Christiano nomini contradixisse sciuntur dictum a sponsa filii matris mei pugnaverunt contra me D. Bernard in Cant. Inimici ejus sunt ipsius domestici Haec intestina insanabilis plaga est Ecclesiae pax à paganis pax ab haereticis sed non profectò à filiis Therefore to conclude this of religion and the disturbance of the Peace of the Church the best Philosophers and Lawgivers did ever repute unity in religion the chiefest Pillar that upholdeth humane Society and obedience to supream authority which cannot stand after religion is fallen * Religionem cum Imperio periclitari Thuan. lib. 116 Histor Religioni nist salvâ Republicâ consuli non posse Thuan. 136. Histor. CHAP. V. Of the use of Parliaments Of the danger that cometh by the abuse of Parliaments and the Factions that therein arise WE pass now from the Church to the Parliament and to those abuses and corruptions which both destroy the use and the rights of Parliaments and the power and Majesty of Monarchy two pillars of kingdomes and Common-wealths As God hath set Kings in the highest place and office and intrusted them with the greatest authority on earth and will therefore take the strictest account of them so cannot they escape his heaviest judgements who are chosen to counsel him in his greatest affairs and do not onely fail in their duty but do intrude themselves into his office and hinder him in the observation of his oath and in performance of his duty to God and his people As the estates in Parliament ought to be Conservators of the Rights and Liberties of the People so ought they to be of their own bounds and limits in which if they exceed they do also give an ill example to all other inferiour Courts of Justice subject to their care and regulation to the hindrance of Justice and distribution of common right which turneth to the disturbance of the peace of the Kingdome and raising confusion in jurisdictions August Si iniquum est transgredi limitem agrorum quantò iniquius est transgredi limitem morum As it is a great crime by the laws Divine and Humane to remove the ancient bounds and land-marks so is it no less to remove the Law bounds and limits of Jurisdictions Hosea 5.10 The Princes of Judah are like those who remove the bounds upon whom I will poure my wrath saith the Lord like water Such incroachments and usurpations proceeding from those who should be conservators and reformers work the speediest confusion in all Societies and it sheweth Gods great indignation when that which should have been for our welfare becometh a snare * It was said in relation to the Roman Senatots fallen from their antient glory aliorum vitia intrd ipsos residuunt nostra latè vegantur ut in corporibut sic in Imperto gravissimus est morbus qui a capite dissunditur Plinii Epiâ—â—olaâ—um lib. 4. Therefore parliaments when they erre thus they erre most perniciously either in being insnared and driven by an over-ruling power or by an active faction or by violent perturbations raigning in them and then do they not deserve the name of Parliaments for as Cicero saith Rempublicam dici non posse optimatum factionem Populi conspirationem factionem tunc esse Rempublicam id est rem Populi cùm benè justè geritur non populum esse omnem catum multitudinis sed catus juris consensu utilitatis communione sociatus Cujecius Vbi est tyrannis vel factio vel dominatus alicujus turbae non tam vitiosa est Respublica sed nulla omnino ubi lex non est ibi nec Populus est si Populus non est nec Respublica nam Respublica est res Poputi And therefore Saint Austin concluded De Civitat Dei that the Roman State when it was subverted by Tyranny or by the peoples factions and iniquity was not a people in not being juris consensu utilitatis communione sociatus neither could it be called properly an cvil and corrupt Common-wealth but rather no Common-wealth when the State was ruined by factions violence and injullice David said under Sauls government that the earth and all the inhabitants thereof were dissolved And thus they who are not lawfully chosen and assembled or do act contrary to their calling and duty cannot challenge any priviledge proper to that office and calling
The Roman Tribuneship was reputed sacred being established for the safety and benefit of the people Plutarch in the life of Gracch But if the Tribunes do that which is contrary to their office or cease from doing those things for which their authority was given them their authority and priviledges leave them Suarez de ligib libro 8. alii Privilegium licet non amittitur per non usum amittitur tamen per usum contrarium per delictum oceasione privilegii commissum per delictum seii abusum directè privilegii sini repugnans fundamentum ejus destrmns And as there are military priviledges and military offences and punishments so are there Parliamentary priviledges and Parliamentary offences which have had and ought to have condigne punishments agreeable to Justice and Politick government and presidents in all times and Kingdomes * They that say a whole Society or Colledge cannot be punished as it cannor he excommunicated do agree that not onely the offenders may and chiefly those who are the cause but all those also who are members and did not resist the evil nisi pertinaciter re stiterunt aique aclis contredixerunt Gless ad c. 7. causa 10 quast 2. ad Decretal de Simonia c. 30. quia officium eorumindividuum est periculum commune universi sunt veluti in corpore unius formae quod ab uno cemmittitur quandoque totius corpnis periculo commiuitur Si tales sint astus singulorum per quos detegi potest conniventia seu voluntas tacita universitatis approbantis delictum Although in all Parliaments Assemblies and Councels the offences of the particular members ought to be distinguished from those of the whole and intire body which may also be involved in their crimes by connivance at them or by neglect in punishing or preventing that which lay in their power Laeditur personali scelcre ac particulari causa cunctorum in Populo Israelitico saepissimè unius facinus pestem fuisse mutiorum Potestas quae inhibere scelus porest quasi probat dedebere sieri si sciens patitur perpetrari But more properly and directly the whole body offendeth in omitting their Principal duty and in committing acts contrary thereunto una voluntate praesidente deliberatione Augustin communicato consilio And as in the Roman History is doth often occur an privato an publico cousilio Si defecerit Populus Livius publico cousilio dolo malo sive non quia delicta vulgi d publica causa separari A People a Cohedge a Body politick may offend and are punishable and as in the Law Populus Cicero L. 9 F. Quod metus vel Curia vel Collegium hoc edicto â—enentur Sometimes the offence shall be punished in their natural Person sometimes in the body Politick sometimes in both And much dispute there is amongst the Lawyers quando universitas punienda sit in suo universali quando in particulari quando quomodo ex delicto Collegialiter commisso quando poenâ laesae Majestatis punienda sit universitas quando singuli ob delictum universitatis all which I passe over although worth consideration The most agreeable course unto Justice is to lay the greatest punishment upon the Authors and cheife Actors Liviues ut unde orta est culpa ibi prna consistat Upon these the Law imposeth the damage for the most part and oftentimes they bear the whole punishment if they can be found L. 6. Cal. de vipubl in eum supplicium exerceri qui vim facere tentaverit alteri parti causam malorum praebuerit It was the Command of God unto Moses to take the heads of the cheife of the People and to hang them up Numb 2â— 4 who had consented dissembled and participated in the common impiety Liviue Causa origo penes autores a quibus contagio Singulis civibus civitatibus tumultnantibus P. Fab. Seme lib. 3. c. 16 atque adeò si non rebellibus contumacibus sed inconsulto ac temerario motu vel alieno etiam exemplo veniam dari For the multitude or greater number seldome equally offend in the highest degree multitudo vix peccat graviter sed aut decepta aut impetu aut temeritate as in the Imperial Law Novel de Procur Casar or by a fatal fury of the time seising on them as a pestilent contagion fatali rabie temporis pestiferâ comagione Livius l. 28. as Mendonius the Spaniard said unto Scipio in excusing his and his peoples rebellion Distinct. 44. c. 1. distinct 6. c. 1. de Poenitentia cum Glossa Multitudo est causa in quam severitas disciplinae exercenda non est sed si volunt defenere peccatum quasi ex authoritate tunc multitudini parcendum non est And therefore we find it agreeable with the practice of the best men and to the rule given by the most prudent that the multitude be spared especially after the offence committed although not when they are in the act offending non parcitur multitudini in delicto committendo ubi perniciosior est quies cunctatio quà mtemeritas Bartol de seditiosts nihil festinatione tutius magis facto quam consulto opus est There may be oftentimes just cause to forbear all punishment of the People as in the case of Syracusa who being charged with revolting from the Romans they pleaded for themselves that their City was undone between the Tyrants of the one side who held them under the yoke Livius lib. 26. and the Roman General on the other side so as they stood in the midst as a prize or reward for the winner and ought therefore to be rather restored unto their former estate by the Romans then after so miserable servitude and war to endure a new addition of affliction and misery I have observed that there are two Pests and cankers which in time hath not onely eaten out all that excellent fruit and benefit which Kingdomes have had and may reap by the right use of Parliaments but have also caused that institution so necessary for the Publick good to prove the bane and ruine thereof The one is when Kings absolute in power and exorbitant in their will give that rule to Parliaments as Xerxes gave to his Counsellors to obey rather then perswade and call their Parliaments onely out of specious pretences for getting of money or to authorise and countenance some sinister purpose and design using strong delusions and giving fair hopes of redress of grievances ostentata potius quam data Paul Aemilius nec nisi brevì mansura remedia Some of the Roman Emperours shewed Kings this way and obtained their desire the Senate being fearful and tongue-tyed Plinius and were called aut ad summum nefas aut ad summum otium * Senatui praebebat Tiberius simulachra libertatis speciosa verbis re inania
entrance they presently enter into a breach of two principall Pillars and rights of Empire ever accounted inter jura summi Imperii the one is the Usurpation of the power of raising Money upon the people the other is the Arming and drawing together of Soldiers For the first the law porvideth ut vectigalia nova Tit. Cod. nova vectig lib. 10. F de Publicanis Deciss Rotae Rom. L. ult F. de vi pub nullo decreto Civitatum institui possint nec ultra antequam consuetudinem inconsulto principe nec sufficit quod agatur de communi utilitate seu necessitate civium nisi ob damnum inevitabile evitandum Qui nova vectigalia exercent tenemur lege Julia de vi publica quia vis Reipublicae datur Force is thereby offered to the Common-wealth as much as by raising and arming of Soldiers Tit. Cod. ut arm usus Lib. 17. Cod. de re milit the other apparent usurpation of Regal Authority Nulli prorsus nobis inconsultis quorumlibet armorum movendorum copia tribuatur This is a universal Law at this day in all Kingdomes and Common-wealths and before this Law the ancient Law of the Romans made him guilty of high treason L. 1. L. 2 F. ad leg Juâ—iam Majest qui injussu Reipublicae bellum gesserit delectúmve militarem habuerit exercitum comparaverit vel quò homines armati cum telis in urbe sint and with this agreeth the common saying nemo tractet ferrum nisi qui sceptrum the sword and the sceptre go together Ordo naturalis mortalium paci accommodatus hoc poscit Augustinus ut suscipiendi belli authoritas atque consilium penès Principem sit Our Laws and statutes concurre herein and especially in prohibiting the arming of men without the Kings authority and of this one proofe amongst many may serve for all In the seventh year of Edward the first the Parliament did fully acknowledg that in them was no power to deale in matters of armes the words of the Statute are that in all Parliaments men shall come without force and armour well and peaceably to the honour of us and of the Peace of us and our Realm and that all the Prelates Earles Barons and Communalty assembled have said that to us it belongeth and our part it is by our Royal Segniory strictly to defend wearing of armour and all other force against our Peace at all times when it pleaseth us and to punish those which do the contrary according to our Laws and usages of our Realm The Subjects are bound to go with the King to the wars at home and abroad Cook Postnaâ—â— and this sheweth natural allegiance not to be local as doth appear by the Common Law and by divers Statutes declarative of the Common Law Cook upon Littleton It is the Kings peculiar right to call all his Subjects to armes especially all those who hold by knights service and to carry them with him when he maketh a voyage Royal or send a sufficient man in their place or pay Escuage And therefore there can be found no Law or reason to justifie the imaginary right of the People or Parliament in the Militia Salutem Reip. tueri nulli magis convenire quam Caesari Deoff Praefectivigil F. Salust nec alium ei rei sufficere quà m Caesarem qui cohortes militares opportunis locis constituit eam esse conditionem Imperandi ut non aliter ratio constet quam si uni reddatur As there are somethings which a King cannot get from his subjects but being either wrested from them or imposed upon them do destroy the essential pars of natural and just liberty and doth render them rather slaves then free-men so are there also some essential rights of the Crown which the Subjects cannot obtaine from their Soveraign by any grant or prescription without destroying the essential and individual rights of Monarchie A King cannot grant by his Charter neither lose by prescription as all the Interpreters of the Laws agree those rights called the flowers of his Crown which are Regalia suprema summa jura Imperii regno tuendo servientia inherent to his Royal Function and Politick Capacity and serve for the strength and support thereof And so by the Canon Law Licet generalis sit tibi concessa legatio Decretal de officio Legati cap. 4. ad ea tamen sine speciali mandato non debuisti manus extendere quae in signum privilegii singularis sunt tantum summo pontifici reservata Illa jura non sunt in commercio quae propriè sunt Dominii Diadematis Domanii Regii quae sunt de bonis juribus reservatis in signum subjectionis recognitio supremi universalis Imperii seu potestatis for by such grant or release would ensue as the Lawyers say deformationem demembrationem turbationem publici Status imperii And such are the rights of making war and Peace of having the last appeale unto him or to his great Councel and supream Court and of making leagues and of dispensing with penal Laws granting pardons and such like For the exercise of his just rights and the administration of his Regal office is committed unto him by God without any permission to suffer the destruction of them or any of them Themistocles declared to the Athenians and Cato to the Romans that man could not usurpe or prescribe unto any thing which was due unto the divine Majesty neither could private men do the like unto the Common-wealth L. 34. F. de contrah empt L 6. de contrah emp. F. L 9. l. 45. de usu cap. L. 7. tit 37. 38. Cod. The alienation of those things are by the Law forbidden quae natura jus gentium vel mores civitatis commercio exuerunt ut sunt sacra religiosa aut quorum commercium non sit praescriptio longae possessionis non concedi in rebus sanctis sacris vel publicis Populi Romani nec in rebus Fiscalibus vel Dominicis quae sunt propriae principis In the treaty between the King of Spains Commissioners and the Hollanders in the year 1607 it was often urged and not gainsaid for ought appeareth that the supream rights of Majesty and Empire could not be gotten from the King of Spain by any grant or transaction between him and his Subjects Relationes Baudii Meursti neither lost by any prescription or lapse of time And yet may a King passe by his grant and lose by prescription some things of profit and of his revenue and other inferiour rights and Regalities according to the Laws and customes of several Kingdoms And in some cases prescription doth ly in all Kingdoms against the King or else controversies would remain immortal So likewise grants alienations and contracts made by the King for just causes and in legal form are and ought to continue valid lest many inconveniences and much injustice should follow and the
King be in the worst condition of all men sit quasi exul qui est omnium praesul Baldus He is tyed by the Laws of nations and nature to observe just contracts which as the Doctors say he cannot make void and revoke de plenitudine potestatis suae The Lawyers affirm that vectigalia alia emolumenta ex jurisdictione provenientia alienari possunt in parte praescribi possunt firma manente jurisdictionis suae suprema exercitatione apud se et successores suos Baldus ita ut sit sine diminutione authoritatis supremae derogatione directi dominii Principis * No Act of Parliament can bind the King from any prerogative which is sole and inseparable to his Person And although some of these Regalities seem to be reserved yet are they grantable and subject to prescription as creare Tabelliones monetas cudere exactiones vectigalium aliquorum and some others quae cùm sint inter minora Regalia corporis summique Imperii Patrimonii Regii integritatem non imminuunt In his praescriptio valeat contra fiscum * Peregrinus de jure fisci alii Chopin de doman Reg. Codex Fab. Sex tinus de Regalibus Tributa alia publica functio seu collatio nullam temporis praescriptionem admittunt Cod. l. 6. de Praescript 30. vel 40. annorum Et generaliter res Fisci non usucapi l. 2 Cod. communia de usucapi Institut de usucap l. 18. F. de usucap temen sunt aliqui casus ubi praescriptio locum tenet contra Fiscum per leges constitutiones Imperiales l. 4. l. 6. de Praescript 30. 40. annorum Cod. l. ult C. de Fundis Rei privatae l ult C. de Fundis Patrimon caus 16. quast 3. c. 16. de Tributis aliisque prensitationibus publicis nullo temporis spacio praedia redduntur immunia non sic de alio jure publico principali seu Fiscali Feudali Cujac consultatio 54. Census tributa domnium Principis res sunt inalienabiles imperscriptibiles quarum vindicatio nulla temporis praescriptione submoveatur His ancient and just tributes and customes and his right of imposing moderate gabells and taxes are not alienable neither within the reach of prescription as likewise the domaines of the Crown called the Royal Dowry for when these are taken away he doth lose his peculiar and proper livelihood and the ordinary means to support his estate and the Common-wealth receiveth much detriment when the King hath not wherewith to live of his own but the people must be continually burthened with exorbitant and illegal Taxes and courses used for raising of money the most usual causes of discord between the King and the People often producing Insurrections and Rebellion and sometimes made use of by factious and discontented persons to justifie or colour their designs against their Soveraign The Emperour Vitellius unto some men released his Tributes Tacitus to others he granted over-large immunities without care of posterity he mangled and maimed his Empire The Common sort accepted these favours the fools bought them with money which wise men accounted void as being such as could neither be given nor taken with the safety of the State CHAP. IX Of the Act of Parliament wherein the King was to pass away his power in the Militia And that other Act which was made for the continuation of the Parliament until both Houses should agree for the dissolving thereof Of fraud or force used towards the King or any other men for the obtaining of any Charters Patens or Grants BUt we cannot finde any grants of Vitellius or of other Roman Emperours or Princes subject to more just exception either in respect of the matter and things granted or the means used for the obtaining of them or the end and purpose for which they were obtained then that act of Parliament whereby the King was to pass away his power of the Militia and raising of moneys upon the People for maintenance of forces by land and sea at the will of the Parliament the ready way to out himself of all power of War and Peace of arming or disarming his own Subjects or any others upon what cause soever contrary to the rights and safety of Monarchies and to the Laws and Statutes of England as hath been before declared But this was as the Psalmist saith to strengthen themselves in their wickedness and to worke their iniquity by a Law The King might as well have granted them jurisdiction over any City or County of his Kingdome independent as unto himselfe and exempt from his authority and the Laws of the Realm and without appeal to his supream Court and he might as well have passed away his peculiar right of pardoning offences and despensing with penal Statutes The Doctors of the Civil and Canon Law say that a King in what grant soever cannot abdicare à se superioritatem suam jus illud supremum Baldus Alexand Angelus alii quod semper praesumitur reservatum nec concedere censetur totum hoc privativè quoad se successores suos ita ut non possit alteri jurisdictionem dare aut potestatem quin ei remanet major jurisdictio potestas quam fuerat translata neque tamen quocunque modo Regalium concessio fiat Sixtinus de Regalib lib. 1. cap. 5. ipsius Imperatoris aut alterius Regis superior potestas ea concessione comprehensa censetur sed potius major quam est concessa illis reservata retenta sit neque potest à supremo Principe licet velit ita concessio fieri ut superior potestas in alium transferatur The fairest and the most specious pretences and the strongest and most legal tyes and formalities make that which is evil in it selfe the most pernicious and abominable damnabilis est malitia quam titulus bonitatis accusat Salvianus this Statute therefore being such and so qualified and so destuctive to that power wherewith Kings are intrusted by God and invested by the fundamental Laws of their Kingdomes and serving most properly to raise and continue discord between the King and his Subjects cannot but appear to all men to be as absurd as pernicious And like this was that other act and of the same leaven and mould with that act of the MILITIA which was made for the continuation of the Parliament until both Houses should agree for the dissolving of it But they did not stay for that agreement for the Parliament was dissolved against their will by the irruption of the soldiers And yet before that they did dissolve it themselves although besides their intention when they deserted the King and his authority and acted contrary to their writ of summons and to the rights of both King and People But more apparently when they suppressed the House of Peers and ran away most part of them together with their speaker unto the protection of the Army and so became the
quid comra salutem majâ—statem Imperii machinatur I. 21. F de Capt. Posslim in exitium Reipublicae contenditur Insâ—iciendum sit quid agitur principaliter voluntas propositum distinguunt maleficia Lib. 1. F ad leg Jul. Majestatis Statutum de turbante Pacem imelligitur de eo qui actum simpliciter facit ad turbandam Pacem non si ex actu turbatio pacis sequitur dicunt Dectores It is the will and the purpose that doth distinguish offences not the act onely or the event fraudis interpretatio semper in jure civili non ex eventu duntaxat Papinion lib. 78.79 De reg jur sedex consilio quoque desideratur fraudem eventum habuisse necesse est consilium praecessisse fraudem We may not imitate those Emperours who did bring into the compass of Treason what they list and were therefore noted with infamy addito crimine Majestatis Tacitur quod tùm omnium accusationum complementum erat cuncta quaestione Majestatis excrcita Plinius L. 7 F. ad leg Jul. Majestatis Erat unicum crimen corum qui crimine vacabant Sed crimen Majestatis non a Judicibus in occasionem ob principis Majestatem habendum esse sed in veritate non arripienda quaevis occasio ad adulandum Principem nisi revera quis reus sit * Paulus sentent lib. 5. cap. 29. Cu jac Ligiumi Principes subditis us li buis non ut servis imperant non ex terrore aut crimin bus Majestatis re verentiam nomini meo adqairi vole dicebat Imperator Tiberius Although the agreements and transactions made between a Prince and his Subjects in arms against him are void in Law yet for the peace and welfare of the people which is the supream Law they are often confirmed and continue in force so for the same reason divers Acts and Ordinances made by and under a Usurped power are observed and continued Those judicial Acts in Courts of Judicature in private mens Causes are held valid after the Tyranny is removed and the Common-wealth reduced into the former estate L. 207. F. de reg jur L. 65 2. ad Sc. Trebel Cicero L. 25. F de statu hem Decis Rotae Rom. Favinacii Glossa ad cau 9 quaest 1. ad caus 1. quaest 1. c. 57. Cuiac paratit Ne sanctum Bapt. iteretur Cod. Aquinas â—olti and this is so potius ex bono aequo quam concesso jure quia publicè interest rerum judicatarum non convelli authoritatem status Reipublicae rebus judicatis maximè continetur for if the judicial Acts should be disannulled peace would alwayes be disturbed and the common right of men destroyed Therefore in many cases neither the personal defects neither the want of a lawful calling in the Minister Judge or Magistrate shall prejudice mens rights and deprive others of the benefit of their usurped actions and authority Episcopus licet excommunicatus si non fuerit declaratus excommunicatus protalihabitus gesta ab eo sustinentur Qui ab haereticis baptizatiessent in nomine Trinitatis Catholici non rebatizarent Placuit Ecclesiae Catholicae dicit Augustinus ne in ipsis haereticis baptisma commune rescindere Essectus Sacramentales non excluduntur propter culpam conserentis Sacramentum ubi ignoramter vel ex necessitate vel in forma Ecclesia recipitur * Excommunicatio licet privat facultate eligendi tam activa quà m passiva suspendit ab efficio beneficio tamen si excommunicatus habet officium publicum valebit quod per illud faciet ratione virtute ejus quousque toleratur Navari in Manual There are many acts of necessity held in force although done contrary to those formalities and to the strictness by positive Laws prescribed and the acts allowed although the persons are by Law disabled who did act Clodius was contrary to the Roman law made a Tribune and Barbarius a bond-man contrary to the Law and to the intention of all through ignorance of his condition was made Praetor yet the acts done by virtue of their office were held firm L. 3. F de offic Plaet propter utilitatem eorum qui apud eos egerunt tamen aliud sit Praetorem esse aliud Praeturâ fungi non suit Barbarius ita factus aut liber aut Praetor sed acta apud cum confirmantur propter uâ—ilitatem aut quietis causam Cicero Common errour although it doth not create or confirm right yet doth it often give force and virtue to the actions of those men who are solemnly although erroneously elected for the preservation of peace and mens rights Much is tolerated of common and publick errour in favour of the Supream authority and common good and the right of particular men ita ut tria concurrant communis error Baldue Superioris authoritas publica utilitas Our Saviour did bid them observe and do as the Scribes and Pharisees required of them who he said did sit in Moses chair Mat. 23. for the lawful Priests and Levites were not then in being But it was not the common errour say the Interpreters of the Law that made this Barbarius a bond-slave a Praetor non error simplex nee publica utilitas simpl x sed voluntas Decis Rota Rom Farinacii L 2 F. de Judiciis quia à populo ercatus crat qui etiam servo cum honorem dare poterat Communis error praestat causam validitati actus excusat à prnâ authoritas superioris licet erretur in jure tamen causat bonam fidem error non dat jurisdictionem nee facit jus licet justam excusationis causam praebeat So favourable to private and innocent men were the Athenians that they paid them the monies which the Tyrants had borrowed of them upon the publick faith after they had expelled those Tyrants and reduced the State Thus when the King of Naples fled and lest his Kingdome to the French King Charles the eighth who had compelled the Treasurers and others debters to the King of Naples to pay unto him or to his soldiers all those monies due unto the King of Naples Aâ—flict dreiss Neapol Bodin de Repub. lib. 2. c 5. Bartolus de Tyranno it was adjudged by the supream Court of Naples that the King of Naples being returned and repossessed should allow of it and discharge them si Questores regni in belli civilis ardore aut urgente tyrannide aut legitimis hostibus invadentibus pecuniam publicam numcrare coguntur illud acceptoserre Respub debeat But as for those acts of the publick interest and are publici juris they are for the most part of them reputed void being made and done by and under a â—yrannical and usurped power as the raising of taxes and impositions the granting of Patents and Charters of Crown-lands and offices and honours the making of Laws
legit c. 7. Rex Rom. nondum coronatus post electionem concerdem ha betemaem potestatem unctio nibil addit Glossa ad tit de jureiurando in Clementin Glossa in in extravag de Majoritate 1 Sam. 10. 1 Kings 39 Seiden of Nobility But when the Prince is by Election Electio facit Imperatorem sed prius suit Imperator quà m coronam accipicbat à Papâ gladium ab Altari Inaugurantur Reges in Ecclesia ubi preces pro iis fiant potestatem iis à solo Deo tradi idcirco Coronam eos accipere ab Episcopo gladium ab Altari Samuel anointed Saul with oyle and said it is because the Lord hath anointed thee to be Captain over his inheritance Zadok the priest anointed Solomon and they blew the Trumpet and the People said God save the King Anointing at the Inauguration drew with it a most reverend regard of the Prince The name of the Lords Anointed in the Scripture and elsewhere doth often occur They interpret that of Daniel the Anointed shal be taken away of Hircanus from whom the Kingdom of the Jews was transferred and unto whom the original of Anointing is referred The Cities in France which would not acknowledge Henry the fourth for their King who succeeded rightly according to the Laws of that Kingdome but continued in the former rebellion raised against his Predecessor they could not help themselves by saying that Henry the fourth was not Crowned and that they never acknowledged him for their King and therefore they were not to be reputed Rebells but they were answered by learned men that they being Subjects by their birth and continuing in their original sin they added actual Neither did Bodins distinction help his Country-men Bodin de Repub so much as it disgraced him in saying there was a difference between a universal defection and falling away of the People and a Rebellion a distinction without a difference but upon better consideration he said neminem patriam repudiare posse De Repub. lib. nec subditus potest imperio sui Principis seipsum eximere Neither can they raise an excuse for rebellion in a Monarchy out of that in the Roman Law that in a Civil war they who ingage on either side are not in the condition of forraign enemies L. 21. F. de Caytivis Cum cives inter se contendunt scissà in duas partes Republicà Aristocraticâ vel Populari captos hinc inde non fieri servos quia non contra Imperii majestatem machinantur nec in exitium Reipub. contenditur ubi non sit tale bellum quod Antonius gerebat quod Casar vocabat non partium certamen aqualis juris Ayala dejure belli lib. 1. c. 2 sed defectionem à populo Romano Thus when the title to the Crown is in controversy it may seem hard to punish those who upon no improbable opinion Cicero L. 9 Cod. de leg l. 12. Cod. de diver reg jur Decis Rotae Rom. L. 106. F. de Regul jur L. 1. F. Quar. rer ectie l. 6. Cod. deliber causa L. 13. F. ad leg Aquil. L. 1. S. 2. F. decondition demon L. 13. F. de Policitat l. 2. S. 44. ed SG Tirtil L 13 F. de interdict nor inclination to rebellion joyn with one side and believe they are not rightly Subjects to him against whom they bear armes as it happened in the war between the houses of York and Lancaster and in that war between Casar and Pompey multi dubitabant quid optimum esset multi quid expediret multi quid deceret nonnulli quid liceret For although the Law saith leges quae constringunt hominum vitas intelligi ab omnibus debent nec eas ignorare quemquam nec dissimulare permittimus tamen aliter est ubi jus dubium intricatum est The Canonists say that when a divine Law is not clear and certain but hath divers interpretations cujus varii sunt intellectus the Pope may dispense with it as he seeth cause But men have no more power to renounce their allegeance then their liberty and freedome which is inestimable or to binde themselves to a corporal punishment or from marriage Quae onerandae libertatis causâ facta sunt non valent Nemo dominus est membrorum suorum We cannot be bound by any covenants and conditions by which jus libertatis nostrae aut jus patriae nostrae laditur qui sui juris sit tamen sui ipsius Dominus non sit conditiones adjectae utilitati publicae adversae remirtendae sunt quae non à Patre sed à genere à rerum natura à civitare tribunmur ca manere incolumia and many others the like in the Law There is that which we cannot put from us as there is that which none can take from us Our allegeance is individual and perpetual L. 9. F. de obsequiis L 5 Cod. de obsequiis L 4. F. de jure Palron We may allow no less to the Parent of our Country then the â—omans did to the Patrons of them who were manumissed and made free liberto semper sancta persona Patroni videri debet and although the Patron were a person condemned by the Law tamen salva sunt jura liberis Patroni consuctum obsequium iis semper praestandum esse à libertis * Qui decreto publico deditus sit hostibus ut suit causa Mancini si hostis non recepisset an civis Romanus manebat magna Quaestio erat L. ult F. de legationib licet dicitur quod civit esse desinit quem civitas repudiavit aliud est in subdito originali maturali licet deditus sit à sua Patria Principe manet tamen sua Allegeancia quae ubique locorum subditos â—ales tenet quia naturalis ratio authoritate Senatus commutari non potest l. 2. F. De usufructu ear ter Our allegeance as it is not so weak so it is not so narrow but it is of larger extent then these men would have it to be for there is a local Allegeance in respect of habitation and residence in another Countrey due from Aliens and strangers unto the Prince of the Countrey wherein they reside and have protection and enjoy the freedome of commerce although they be not there naturalized and made Denisons And here we may take an occasion to admonish all Strangers Subjects to any Prince or State in league with our King who assist and associate themselves with our Kings subjects in actual rebellion for such may and ought to be punished as Rebels by either Prince if they have no warrant for it from their own Soveraign quia hi ladunt Majestatem sui Principis in laedendo Confaederatumejus Alb. Gentilis disput ad julMajestatis Gentil Hispaenicae advocationit ad Jus belli nam confoederatio sit tantae potentiae ut de duobus unum faciat Satis est ad Peregrinum obligandum quod
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
quorum commercium nullum est sed propriè tamen non Populus alienatur sed jus perpetuum eos regendi non hominum liberorum fit alienatio Guide Pap. deciss Grot. de jur belli lib. 1. c. 3. sed jus quod in homines competit transcribitur The Provinces and Cities of France declared unto their King John Prisoner in England to Edward the third as did likewise those of Gasconie when they were to be turned over to the allegeance of John of Gaunt French Invent. Paul Aemilius Baldus Chopin de dominio that without their free consent being freemen born and not slaves they could not be made Subjects to another Prince And thus when Francis the first was pressed to the surrender of certain territories Bodin according to the agreement between him and the Emperour Charles the fift the Court of Parliament of Paris did declare as before that the King could not do it Regium summumque apud Gallos dominatum Regia jura minui dividique non licere non posse Rex Johannis Angliae aut alius Rex alienatione regnorum suorum vel servitute imposita non possunt jus posterorum laedere nee subditos suos ad alterius Principis obsequium reducere Quae natura sua dominio nostro exempta sunt Institut de inutil stipulat 2. in obligationem deduci non possunt By this that hath been said and by that which followeth it will appear how absurdly some men of more learning joyn with our adversaries in affirming that the People have an original right in them to reform limit and remove their King and that although the Regal power be setled in the Stock Family yet so as the stock and linage itselfe is onely chosen and not all and every branch To prove this wild Chimera some of their Champions the better to make way for deposing of princes bring divers selected places of scripture joyning unto them strange and false inserences and interpretations with as feeble arguments deduced rather to prove themselves seeds-men of sedition then sincere Patrons for the Peoples liberty They regard not their often being learnedly confuted but still they will go on with arguments drawn à facto ad jus à dicto secundum quid ad dictum simpliciter raising general conclusions drawn from some singular and extraordinary examples not warrantable for our imitation although serving excellently for our instruction It was never found in any Author nor heard of till of late that any People did choose a King and his linage and race to rule over them and did or could reserve power to themselves to take or resuse such of his posterity and race as they pleased at any time Without any mention of original right or reservation of power in the People the wife man saith that power is given unto Kings of the Lord and soveraignty from the Highest Book of Wisdome cap. 6. who will try their works and search out their Counsels And another man of much prudence and a great favorour of the Peoples rights and liberties saith that God had therefore reserved Kings for the greatest punishment because none in earth had power over them Commines We finde in our ancient Law-books Britton and Bracton Our most ancient Justice Bracton saith nemo Regi recessitatem impoâ—ere potest cum superiorem non habraâ— nist Deum satis ei erst ad paenam quod Dominum expeciat ultorem Tacitus John Bede of the Right of Kings that the Kings jurisdiction is above all jurisdictions and that from him all are derived and so say the Civil Lawyers omnis jurisdictio vel Principis esse vel à Principe manasse It doth not help our adversaries their affirming that Princes are appointed for the good of the People which is true neither their disputing whether a Kingdome be haereditas jus sunclio an t possessio and a King be proprietarius or usufrucluarius onely These busie Questionists serve to perplex mens judgments and to pervert the truth and are men novandis rebus quam gerendis aptiores Kings are for the People as the soule is created for the body and the head for the members to wit in a superior degree to command but never to set the feet or the members above the Head Kings were anciently called Pastores Populi the Fathers and Husbands of their Countrey Pater urbisque maritus Romulus Rex Parensque urbis Romanae Lucan Livius L. 62. F. de regul Jur. It is certain that Kings have a good estate of inheritance Haeredit as est successio in universum jus quod defunctus habuit and how can this be denyed of a Lawful successor in an hereditary Kingdome Ad millesimum gradum extenditur regni successio Baldus alii Grot. de Jure belli lib. 2. c. 7. in regno successivo repraesentationi locus est in infinitum In regnorum successione distingui debent regna quae pleno modo possidentur in patrimonio sunt ab his quae modum habendi accipiunt ex Populi consensu This Royal succession doth differ from private mens successions neither is it ruled by the subtilties and nice distinctions of the Roman Laws or the Law of the Fendes neither by the municipal Laws and customes in several Countreys which concern private mens inheritance and succession for as was said before quae sunt publici juris Coronae separatam habent à jure privato causam rationem Bartol alii The Interpreters of the Law agree that the Law Julia and Papia touching the estates and inheritances of men doth not extend unto Kings L. 3. Cod. de Testament Cujae ad dict Tu. Nevel 105 in fine Gothof ad dict tit 105 dict l. 3. C. de Testâ—â—ment l. 23. F. de leg ills 3. although the words are general which in Laws and Statutes sel dome or never do reach unto Kings Princeps legibus solutus est id est lege Julia Papia non ab omnibus legibus lex imperii solennibus juris Imperatorem solverit omnibus autem à nobis dictis Imperatoris excipiatur fortuna Fruitur Princeps singularibus privilegiis licet in multis casibus codem cum caeteris jureutatur nihil tam proprium Imperii est quà m legibus vivere decet enim tantae majestatis eas servare leges quibus ipse solutus esse videtur Bald. alii The most learned affirme Regnum non assimulari simplici deminio ut pater ex jure transmittendi regnum ad liberos jure successionis Regiae and that doth so appear by many singular rights that there doth competere Regi universale dominium terrae which rights are the marks of universal dominion and did spring up with the erecting of Kingdomes without any concession of the People or any other although at the first the People did elect their King Regi competere universale dominium terrae Ex libro Jacobi Regis
satis liquet ex legibus de Thesauris de iis qui moriuntur sine haeredibus de spuriis jus legitimationis non habentibus à Rege qui solus id conferre posset Yet although it be said in the Law omnia sunt Principis it is qualified with this explication Seneca Cujac ad tit Cod. de quadr pesc vip omnia sunt Principis imperio singulorum dominio seu proprietate omnia esse Principis id est fiscalia dominica sua sunt in suo patrimonio haec sunt quasi propria Principis omnia alia sunt propriè Principis imperio singulorum dominio L. 2. S. 4. ne quid in loco pub Tertul. Res fiscales quasi propriè Principis sunt Sed si omnia sunt Caesaris quid erit Dei It hath been often seen that when the right of succession descended to the next Lawful heir who hath been barred by former acts of Parliament those acts were never held valid to deprive him and his heirs whom the Law accounteth Grot de jure belli l. 2. c. 7. Glossa ad cap. cum secundum leges eâ—si neces se de ha red successores juris territorii jurisdictionis universalis tam active quam passivè successio Imperii non est sub jure Imperii Proximior de sanguine Regio non obstante quod crimen laesae majestatis commisisset esset indignus potest tamen indilatè absque aliquo temporis intervallo Regiam Dignitatem assumere Rex vocari King James in his book to his son admonisheth him never to defraud the nearest by right of succession what conceit soever he had of his person who was the next for Kingdomes are ever at Gods disposition and in that case we are but life-renters lying no more in the Kings nor Peoples hands to dispossesse the righteous heir All former defects are purged by the descent of the Crown and this it seemeth all Princes and States who make leagues and contracts with Princes do acknowledge otherwise they have been and may hereafter be deceived in making contracts with Princes who are and may be declared incapable to grant or receive any thing by vertue of an act of Parliament or by any original or dormant power remaining in the People or in any other For thus should Princes have rather precariam possessionem quam legitimum Imperium whereby a multitude of endless quarrels would dayly arise at home and abroad to the prejudice of mens right and to the disturbance of the peace of Christendome They who argue that a King cannot alienate his Kingdome say that Kingdomes are not in the full propriety and patrimony of the Prince because liberi homines in commercio non sint and they add also that a Kingdome is not onely a succession hereditary but a right also of primogeniture and proximity of blood not as simply descending from the father or Ancester sed sit etiam successio virtute legis Coronae seu consuetudinis inveteratae immutabilis regnorum Covaruviae Agnati Regum non tanquam agnati ad successionem vocantur causam titulum jus successionis Hotoman de jur suc Reg. Baldus Carolus Molinaeus ad consueludines Paris Grot. dejure belli lib. 2. c. 7. n. 22. non à Rege novissimè defuncto accipiunt non jure haereditario sed jure sanguinis stirpis consuctudinis regni Frequens in regnis est successio non haereditaria sedlinealis dicitur non jus illud quod repraesentationis dicitur sed jus in posteros ex primo rege venientes transiens ordine certo By an argument drawn from these distinctions in the Royal succession Henry the Second of France signified to the Switzers that he was not bound to pay all the debts of his father because he held his Scepter lege Regia non simplicihaereditario jure And so did Lewis the twelfth answer those who demanded of him Artillery lent to his Predecessour Charles the Eighth that he was not the heir of Charles but his Successour of the Crown Quia in jus Regni duntaxat succedit quà talis successor sit non obligatur contractibus praedecessoris sui quia jus non accepit ab co qui proxime decessit Tamen hi contractus obligant successorem si probabilem habeant rationem quod in dubio ob regentium autoritatem praesumi debeat nec res haec ad naturam negotiorum gestorum exigenda est ut tum demum ratus sit habendus actus si utiliter gestus sit nam ad tales angustias reipublicae Imperantem redigere Grot. de jure belli lib. 2. c. 14. ipsi etiam Reipub. esset periculosum Sed successores tenentur pro utiliter gestis quia pro utilitèr gestis tempore tyrannidis tenetur dominus verus contractus tum gesti valeant Gentil de jure belli l. 3. c. 22 Non admittenta est exceptio adversus hos contractus qui sunt Regii successores tenentur si contractus sint ex natura consuetudine Principatus Birth giveth right unto Soveraign dominion in all hereditary Kingdomes which right is not holden as of the Patrimony of the People but the King hath it as a Proprietor independent by the Royal Law Tillet Bodin and inveterate custome of succession which custome is an immutable Law as in France Mesdames filles de France non par la Salique ley escritte pur les seuls subjects en sont perpetuelment excluses par costume ley particulare de la maison de France whether this Salick law extendeth to the succession of the Crown is a question In terram Salicam mulieres ne succedant Paulus Aemilius Thuanus Car. Molinaeus ad Consuetud Paris terram Salicam regnum Franciamque interpretabuntur Lex Salica cum Regno coepit ad quam Franci non facti sed nati educati certissimum Franciae Palladium In hoc maximè introducta est haec successio Agnatica in Francia ne per Faeminarum matrimonia ad peregrinum sanguinem Imperium deveniret In the great controversie concerning the Succession of the Crown of Portugal before mentioned although the Lawyers did much differ in their opinions upon the several titles of the pretenders to that Crown and much perplexed themselves upon the distinctions inter jura proximitatis repraesentationis primogeniturae yet they all agreed that inasmuch as Portugal was gotten at first by conquest and not by any election of the people the people had no colour of right so many being living of the blood-Royal Neither was there any Law or custome for excluding the Prince of Parma one of the Competitors in respect he was an alien born or because his mother from whom his right came the eldest sister dyed before her younger sister the Dutchess of Braganza The lawes of other Kingdomes as the law of England doth distinguish the rights of the Crown jura regalia jura Coronae lex Coronae
them As it was the case of the Romans when they came first from ruined Troy and planted themselves in Italy And so the Venetians forced to forsake their habitations upon the firm land and to plant themselves in those Marishes and little Islands in the Adriatick Sea where Venice now standeth there built and fortified themselves against those barbarous People which over-ran the noblest parts of Europe against whom they could have no protection from the Roman Emperour their Soveraign In these respects they justly challenge that City and the Sea with the Dominion thereof And although it be farther granted that a people in such case may choose any form of Government And that a people and commonalty also have right to choose a King upon the failing of the Royal line because Regal Right and Dominion where there is none left to inherit it neither head to rule over it cometh to the body and commonalty for preservation 〈◊〉 human society yet all this helpeth not our adversaries It cometh nothing to the proof that all Kings hereditary hold their authority as derived from the people and that it still remaineth habitually in the people and that although Supream 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 Neither can they draw good arguments and especially general conclusions from singular and extraordinary events and examples or from actions enforced for the safety of the People which is the supream Law Necessity often findeth a justifyable supply upon the fayling of Gods own ordinances expresly injoyned to be observed if otherwise the most necessary duties would fail to be performed Sed quae propter necessitatem recepta sunt Regulae Juris Canon non debent in argumentum trahi Quòd ob gratiam alicujus concessa sunt non debent ab aliis in exemplo produci They cannot prove that in Elective Kingdomes the People or Electors after they have once elected do alwayes retain such influence of their power over their Kings as that they may depose limit or correct their Kings unless their lawes have so provided The Emperour Valentinian being requested by the Army to choose a Colleague answered it was in their power to advance him to the Imperial Throne but now for ye to meddle in matters of State it is improper it belongeth to the Prince as ye have all acknowledged therefore henceforward do as ye are commanded Authority rightly setled is not easily removed neither by the intermedling of others to be impeached Those who have authority of Electing and transferring power unto others have after those acts are consummated no power to deal in any thing appertaining to that Power by them transferred Non est novum ut qui dominium non habeant Z. 46. F. de adquir rer dom aliis jus dominium praebeant vel causam facultatem modum jus vel dominium acquirendi ut creditor qui pignus habet pignus vendendo causam dominii praestat quod ipse non habuit So the rules often fail Qui constituit est major constituto nemo dat quod non habet quod verum est quùm nec potentià habeat sed det transferendo conferendo Episcopus sic det Sacerdotia Canonici Episcopatum Cardinales Papatum quae nec proprietate nec possessione habeant dicunt Interpretes When the Romans gave up their Supream power unto their Emperour no part of that power was ever held to be remaining in the people Constituto Principe datum est ei jus L. 2. F. de erigine Juris tit God de veteri jure enuclean ut quod ille constituisset ratum esset Lege antiqua quae Regia nuncupatur omne jus omnisque potestas Populi Romani in Imperatoriam translata sunt potestatem This power thus translated was not a delegated power aliud potestas delegata aliud transfusa This power transferred remained as immutable as the lawes of the Medes and Persians or the sentence and decree of any Court of Judicature which being once solemnly and definitively pronounced that Court cannot reverse L. 55. F. de re jud amplius corrigere sententiam suam non possit And so in diverse other cases non datur regressus If we cannot find by any law or reason that the Romans or any other People who had in them the supream power could after they had transferred this power to Kings and elected them reassume this power again and when it doth please them depose their Kings or limit and restrain their power by vertue of an habitual power still remaining in the People as is supposed then undoubtedly we can find no right in the People or in any societies or communities of People to depose restrain or limit Kings of hereditary succession especially those who have not their right from the People but by Conquest as in England From such Kings of hereditary succession and right all jurisdictions do proceed and in them reside and unto them they return say the Lawyers Rex est lex animata and his office and function is Indesinens Consulatus Novel 109. All other rights and liberties how ancient soever have been as in other Kingdomes at the will and mercy of the several Conquerors of our Island the Romans Saxons Danes Normans Our rights and liberties contained in magna Charta granted and confirmed by diverse Kings after much effusion of blood we nor our Ancestors did nor could ever claim by vertue of any reservation made by the People or any others when they were conquered neither by any original right inseparably inherent and vested in the People and from them derived If we could hardly draw from our Kings the confirmation of our ancient just laws in force before the Norman Conquest and with much difficulty and contestation obtain our former liberties often promised and granted by our Kings and as often violated we could not preserve any such original and inherent right unto any Supream power over our Kings as is imagined Huntingdon Normanni cito breviter terram subdentes sibi victis vitam libertatem leges antiquas Regni concesserunt Henric. de Kinghton Joh. de Brampton Willielmus Normannus dedit multis peregrinis qui cum eo veniebant in Angliam multas possessiones Anglis in servitutem redactis probrosum fuit vocari Anglicus He gave to those who served him terras possessiones Anglorum ipsis expulsis modicum quod illis remanebat sub jugo posuit servitutis Although he granted our lawes and liberties in use before his time yet he gave many Mannors and much land to strangers and Soldiers who came with him and unto the Church and kept much to himself as Domaines of his Crown by which means many of the antient owners were dispossessed Malmesbury The Conquerour did in his Charter and grant of some of the Antient
tua res agitur licet aedes demoliri vicini ne ad nos incendium veniat The Romans would not suffer an increase of power by iniquity L. 49. F. ad leg Aquil. l. 3. F. de Incendio l. 7. F. quod vi aut clam Salust Cicero Majestatis erat Populi Romani non pati cujusquam regnum per scelus crescere It was none of the least branches of the Romans glory who were the mirrour of magnanimity that their Common-wealth might truely be reputed Patrocinium orbis terrae potiùs quam Imperium Regum Nationum portus perfugium But yet the Romans were seldome losers by protecting and ayding others for by that occasion they got much of their dominions Salust Cicero Populum Romanum sociis defendendis terrarum omnium potitum fuisse God gave them as some say universal dominion for their excellent vertues and laws others say it was given them to scourge the tyranny and vices which did raign amongst other nations and to end the discord and contentions amongst them From the discord of Citizens Strangers take their opportunity against them Livius The Carthaginians first passed into Cicily to take part with one side in a Civil war but they endeavoured to make a prey of both For sometimes neighbour Princes have as in the fable plaid the part of the Kite between the Mouse and the Frog and ended their strife by gaining that and more then that for which they did contend as the Turk did in Hungarie when they called for his assistance And thus other Princes have dealt with the Italians at war amongst themselves until strangers got all or spoiled all they left behind them Other Princes when their Neighbours have been in Civil war have endeavoured to break the course thereof and joyned with one side lest when both were weakned the whole should fall into the hand of some potent neighbour or enemy of theirs The Roman General Quintius offered his assistance to the States of Greece Livius lib. 34. to destroy Nabis the Usurper of Sparta lest the contagion thereof should spread farther and take hold of the other Common-wealths and Cities of Greece CHAP. XVII Of the King and of his power in Parliament THese pretended Patrons of Popular liberty or rather of licentiousness and confusion can find no way so meet in their conceit for maintaining their Plots as parity in Ecclesiastical Government which being once established in the Church by the example thereof King James book to his Son the Politick and civil State should be drawn to the like And therefore they will have an actual power to be joyntly in the People with their Soveraign in making of Lawes which they call their Legislative power in Parliament so as they would leave unto the King little or no power with his negative voice and would weaken all his rights in Parliament but especially his right of dissolving Parliaments They would make him inferiour to the Roman Tribunes of the people Livius Plutarch for any one of them by his negative voice could cross that which his Colleagues proposed to the People and any two of them could stop all proceedings and dissolve all the solemn assemblies of the people called by the authority of the other Tribunes But say what they can they cannot find his Legislative power to be any other thing then the Regal power and a principal part and branch thereof although in many cases it be very justly restrained in the use and exercise thereof to the Kings sitting in his Parliament his Supream Court and Councel with all the estates of the Kingdome but this is not in respect of any power or original and habitual right inherent in the people The Commons are called by their Writ ad faciendum consentiendum his quae de Communi consilio Regni nostri ordinari contigerit as were the people by the ancient Canons of the Church called to the election of their Pastors and Prelates Distinct. 63. c. 1. c. 12. c. 8. c. 36. non quod debent imeresse ut eligentes sed ut consentientes nullus invitis pepulis non petentibus ordinetur ne Lpiscopum non optatum aut contemnant aut odiant Is eligatur qui à Clericis electus à Plebe expetitus fuerit nec alitèr ascribitur Matthias Apostolorum Collegio Acts 1.15 6.2 Cpyrianus nec aliter septem Diaconi creantur quà m Populo vidente approbante Haec exempla ostendunt sacerdotis ordinationem non nisi sub Populi assistentis conscientia fieri oportere And thus by the same reason and equity it is that Lawes which bind the estates and lives of men and are for the common good of all and singular Persons should be made in the great Council and supream Court of the Kingdome by the advice and assent of all the Estates of the Kingdome By which course the just rights and liberties of the people are preserved and taxes and levies of money on the people imposed onely by Parliamentary authority as they ought to be For thus the People are induced and ingaged to a willing observation of those lawes and submission unto those impositions for the making and raising whereof they have given their consent It was said long since by a wise man that in ancient time and to the honour of England Commines it was best governed of any Kingdome the People least oppressed the Kings living upon their own revenues subsidies granted but onely for war with France or Scotland and the war undertaken by the advice of Parliament by which means the King was the stronger and better served and he addeth also that Princes cannot levy on their Subjects without their consent If we look upon our most ancient Statutes or rather Charters of our Kings and the form and stile of them we shall find no Character of any legislative power in any but in the King neither so much as the Peoples concurrence or consent in any Parliamentary way It appeareth in our ancient Histories Mat. Paris Hoveden alii that during the Raign of diverse Kings after the Norman Conquest the Kings when they called their great Councel or Parliament the summons went only to the Prelates Earls and Barons and in some of those Histories there is mention of calling the Commonalty and diverse sage and wise men In Kings Johns time the first summons upon record appeareth to the Prelates and Peers S. Rob. Cotons collections and something may be gathered although darkly of the admittance of the Commons Before that time every man by his tenure held himselfe to his great Lords will in whose assent his dependent Tenents was included These were long after the Conquest taxed and assessed by the consent of their Lords of whom they held who enjoyed great Regalities in their Signiorîes and were to their vassalls totidem Tyranni saith Mat. Paris These great Lords did so curb and restrain
Regis qui regnaturus est super eos 1 Sam. 8. vers 9. 11. And Samuel told the people the manner of the Kingdome eloculus est Samuel jus Regni 1 Sam c. 10. vers 25. CHAP. XIX Of a Civil war and of the effects thereof I shall now draw towards a Conclusion and in my passage shew the fruits of our adversaries wit and labour which have been rebellion civil war and servitude with some examples of their forerunners in other countries which they have imitated being they were more apt to imitate and magnify any example of rebellion then to take warning by their calamities or to consider the ruine of their own Countrey and the great scandal they have given unto the Christian name To begin with that which was nearest to us the late memorable example in France where they of the Reformed religion for their desence and liberty of conscience as they set it forth in their Declarations and Protestations made an Association and took up arms And soon after those of the Roman religion made the like Association about the year 1576. which they called the holy League Thuanus Both these produced the most dangerous rebellion and civil war in all respects that ever fell upon that Kingdome or any other Christian Kingdome for the people generally fell into such a phrensy that they deserced their Allegeance charity religion and reason Into these Associations many were at the first drawn unadvisedly through diverse and different perturbations in their minds designs and interests some upon false apprehensions and reports of the King and others cunningly raised Others through discontent want of livelyhood hope of raising their fortune hatred one of another or of the present government or of those of the greatest power therein and many out of preposterous and wild zeal And when repentance found entrance they could not find any way out of this Egyptian darkness The Cathoilck league was carried on with much subtilty and power by the cheif of the faction men of great power in Court and with the seduced and violent people Unto this league by ill counsel the King Henry the Third gave connivance and out of a desire to suppress some popular fears and jealousies of him and to shew himselfe really a devout son of the Church he soon declared himselfe a party And finding this Catholick league overmaster him he fell to no better shift then the confirming and ratifying of it by his authority But soon after that he perceived the design of the cheifest amongst them tended to the weakning and subordination of his authority by many of their actions and cheifly by their endeavour to get the power of the Militia into their own hands and all under the colour of defending the Catholick religion and the extirpation of Heresy For prevention thereof and preservation of himself from contempt into which he did run by joyning himselfe to the league he sought to throw out the devil by Belzebub and all that he could do could not untwist those inextricable difficulties in which it pleased God to leave him although he was a Prince indued with prudence and fortitude and as was said of him he might have proved an excellent King if he had not fallen into such times But he laboured and strugled under the contempt and hatred of his people either of them being sufficient to draw destruction upon Princes and the affection of his subjects was fastned upon the Duke of Guise a great Lord in respect of his alliance and followers exceeding popular ambitious active and of excellent parts Under this new league and association new officers were chosen soldiers and mony raised and war with the Protestants waged The League was acknowledged to be the head the King became an accessary and not the principal A preposterous and deformed government erected into the body a new head ingraffed and the old laid aside not cut off but made of no vigour and so was a horâ—id monster raised Then did it soon appear that those armes taken up for religion by the actions and the accidents ensuing were turned against the King who too late caused the Duke of Guise and the Cardinal his brother to be slain the which act drew on the Tragedy to the height for the year after he himselfe was murdered Peradventure it will not seem impertinent considering the likeness of our condition now in England Thuan. l. 100. to relate the words of our wise Author who saith Foederatorum factio primò libellum emisisse constat quo sumptorum armorum rationem reddebant ad levandÄ scilicèt Tributis plebem quò his inescamentis fascinatam ad suas partes pertraherent novarum rerum cupidos boni publici praetextu ad rebellionem impellerent Cum haec non successisset alia via Plebem aggressos religionis causam in horum animis praevalidam affinxisse quamvis nemo religionis observantior fuit quam Rex Henricus Tertius calumniose multa in illum commentata crant quasi communicatis cum sectaria peste consiliis evertendae religioni incumberet His successor Henry the Fourth a prudent magnanimous and victorious Prince passed through a multitude of difficulties and obtained many victories before he could get the quiet possession of his Crown occasioned by the errours and dissentions amongst those of his own party as much as by the power and practises of his adversaries the leaguers and their adherents And although he did see the death and destruction of many of them yet was he driven to agree upon hard conditions and to grant a pardon to them to the great discontent of many who had served with much courage and fidelity for his friends did see many malitious rebels in as good or better condition then themselves The Kings excuse was that he could not help it for he was inforced to expel one plague by another And as it is related in the History when the King had effected peace then did appear the incomprehensible effects of a Civil war driven to the height Religion pretended on all sides at first cast out at last or used but as a stalking-horse the honest Families the Cities and the people generally corrupted in manners and brought to poverty the Nobility most of them accustomed to rapine and licentiousness apt still to retain that course of life Unto those who were oppressed with debts or guilty of great crimes peace the inestimable blessing of God was a torment Others were ready upon all opportunities to take arms again to maintain their prodigality and wholly indisposed to use any honest trade or civil course of life and some to be revenged of their enemies or to repair the losses they received in the former Civil wars And as by the occasion of the Roman civil war impositions and taxes intolerable were laid although then excusable yet many of them alterwards remained in time of peace and so it hapned in France after their war ended with the English and their Civil
Whether by the lawes divine and humane forbidding the resistance of the soveraign authority justly established we are thereby restrained from all resistance by armes in defence of our goods estates just rights and liberties when the resistance cannot be made without hazard of other mens lives and of sedition and civil war I will not insist upon the decision thereof it is a work of long labour and not much pertinent I will add this as a most undoubted truth that a Civil war or rebellion doth most commonly produce more pernicious effects in one year then either the insufficiency or Tyranny of a Prince can in an age It was truly observed that the Roman State suffered more in those seven months of civil war raised by Sylla and Marius then in the fourteen years of that bloody war which Annibal waged in Italy at their own doores although their loss and damage was inestimable Brutus perswaded a wise man his friend to joyn with him in the Conspiracy against Julius Caesar his friend answered him that the government under a Tyrant was not so bad as a Civil war Our fanatick Polititians who teach men rebellion and to flatter and deceive the People and to effect their own designes do say that the supream power is originally in the People and habitually inherent in them and is derived from them so as they may chastise and change their Kings and assume again their power They do not consider how by these improbable assertions they weaken the bonds of all lawes humane and divine and cut the sinewes of all magistracy and government how they do incite the People to rebellion and preserve the seeds thereof alwayes in their heads and hearts how they in leaving Kings to stand or fall according to the changable humours of their own subjects who against common reason they make to be judges accusers witnesses and parties they leave Princes in the most miserable condition of all men And the People also ever desirous of innovations and prone to all licentiousness when the reins are but slackned they do expose to the fury of their provoked Soveraign by their rebellion and to the loss of their just rights and liberties and perhaps to intolerable servitude under the sword of a Conquerour The Rivers which by some violent accident have broken their bounds are destructive to themselves and to all round about them They run on still and scatter themselves and never come to good until they return to the right Channel and are inclosed and fensed again within their proper and just bounds assigned unto them by God and Nature I could not in this discourse insist upon the framing and deducing of arguments although they were necessary for confirmation of the truth and confutation of falshood neither in drawing my matter into an exact method my desire was to relate the truth and to rectify the judgments of the ignorant for Gods glory and the good of my Countrey and to convince those who are perverse not presuming to teach the wise and learned unto whose Judgments I do submit THE CONTENTS CHAP. I. INnovations in Government Publishing of false Newes and Prophesies Pretenses of Reformation Sects and Divisions in matters of Religion Quarrel against Episcopacy Page 3. CHAP II. Of the Presbyterian Government in the Church The practice in the Primitive times Touching the election of Pastors and Ministers in the Church and their maintenance by paiment of Tythes Pag. 11. CHAP. III. The inconveniences that happen by the alterations of Government in the Church and Common-wealth Of Ceremonies used in the Church-Service Of tender consciences Of the coercive power of the Magistrate in matters of Religion Pag. 16. CHAP. IV. Of the changes in Religion in England And by Luther And the toleration of divers Religions Pag. 31. CHAP. V. Of the use of Parliaments Of the danger that cometh by the abuse of Parliaments and the Factions that therein arise Pa. 35. CHAP. VI. The Right that Bishops have to sit in Parliament Pag. 40. CHAP. VII The necessity of having all the Members present in Parliament or the greater number of them and the danger of Consederations Associations Ingagements and other indirect practises contrary to the Rights of the King and the liberty of the Subject Pag. 49. CHAP. VIII Of Seditions and seditious Assemblics and the punishment thereof Of the power of the King in that which concerneth the Militia and the Arms of the Kingdome And of other Rights of the Crown Pag 57. CHAP. IX Of the Act of Parliament wherein the King was to pass away his power in the Militia And that other Act which was made for the continuation of the Parliament until both Houses should agree for the dissolving thereof Of fraud or force used towards the King or any other men for the obtaining of any Charters Patents or Grants Pag. 63. CHAP. X. The Caese of Subjects in Rebellion against their Soveraign and the errour of those that would draw more crimes within the compass of Treason then they ought Of Acts made and past under the power of a Vsurper Pag. 76. CHAP. XI Against any power pretended to depose Princes Of the Allegiance of the Subjects Of the oath of the King and of his Coronation Of strangers joyning in Arms with Subjects in Rebellion against their Soveraign Of oaths and ingagemeuts made to Tyrants and Vsurpers Pag. 85. CHAP. XII Of those who onely accept of Offices and Imployments under Tyrants and Vsurpers Pag. 100. CHAP. XIII Of the inseparable conjunction and relation between the King and his Subjects which cannot be dissolved by any law or custome That Kings cannot alienate their Kingdomes nor Subjects renounce their allegeance nor bar the next successor of the Crown Pag. 103. CHAP. XIV Of the Beginning Continuation of Kingly Government P. 111. CHAP. XV. Of Prescription as well upon Land as Sea And the Right and Jurisdiction that the King hath in the Sea over the Sea P. 116. 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 Pag. 121. CHAP. XVII Of the King and of his power in Parliament Pag. 136. CHAP. XVIII Of the Kings Prerogative Pag 141. CHAP. XIX Of a Civil War and of the effects thereof Pag. 146. CHAP. XX. No pretences whatsoever can be just ground of a Civil war or Rebellion Pag. 153. FINIS
by which peculiar law the eldest is preferred without respect of the whole bloud Neither doth infancy worke any disability in the Person of the King Lord Chancel case of the Postnati or by being born an alien and all this in respect of his politick capacity adherent to his natural Person and so all defects are purged and all impediments removed by this regal right of succession CHAP. XIV Of the Beginning and Continuation of Kingly Government IF this supream power as they affirme be still inherent in the People and that they had this supream and original power immediatly from God or by his will and approbation and that the power of rule and domination by vertue of the Law of nature is in the community of men and in no particular Person and although they do transferr this power yet they may when there is a cause assume it again How then can they reconcile themselves with St. Paul who saith the Powers are of God are ordained of God or with Saint Peter who saith whether it be to the King as the Supream And how can they reconcile their doctrine with that which Aristotle and other learned men affirme that by nature most men are subject and servants to others minùs sapientes minùs perfecti natura ipsa sunt servi sapientibus subditi ut ab aliis regantur and these thus Subject are the greater number Aquinas Servitus est naturalis ratione utilitatis consequentis scilicet quod quis regatur à sapiente licet est contra primam naturae intentionem est tamen secundùm naturam juxta ejus secundam intentionem ita est ordo naturalis in hominibus ut serviant aliqui Persona est domina vâ—l serva ratione naturae Fst utilis servitus cùm improbis aufertur injuriarum licentia domiti se melius habebunt quia indomiti deteriùs se habuerunt Augustinus Licet initio homines natura liberi nascebantur jure naturali non trant dominia distincta in ipso quidem statu naturae primo non tamen ex hoc negatur posse jure humano gentium hominum crescente malitia statui servitutem fieri dominorum distinctionem idque ratione naturali factum fuisse apparet ex eo Covsruvias quod utile valdè Reipub. sit societati humanae L 19 de Civ Dei cap. 15. And so Saint Austin Nullus natura in qua priùs Deus hominum condidit servus est hominis aut peccati verum poenalis servitus ca lege ordinatur qua naturalem ordinem conservari jubet perturbarive vetat quia si contra cam legem non fuisset factum nihil esset pâ—nali servitute coercendum * Servitus est contra jus naturae propriè quoed statum innocentiae quò ad statum post peccaium non est con tra jus naturale Imò servitus aliqua saltem quo ad statum post peccatum dici potest secundum jus naturale quatenus est quaedam paena determinate jure humano pro delicto quod jure naturae castigandum est ut sentis Thomas Navarrus Seeing therefore that the best and wisest men are and ever were the fewest in number and that the greater number are by the law of nature and ought of necessity for the preservation of human society to be in subjection or in servitude and cannot have a right unto liberty in respect of those many imperfections and vices which do raign in them how can they have a right unto domination and rule and to transfer a power which they never had neither were ever capable of it unless it be such power as they have lately usurped in our Countrey whereby they have out in sunder the reins of †As did those ten Tribes who usurped upon the lawful progeny of David as they did upon Gods right who said unto them Ye have set up Kings but not by me and made Princes that I knew not Hosea 8.4 Government and brought all things into confusion Sin cast us all into servitude and out of this servitude all could not arise and have a natural right unto either domination or liberty What power of domination can we find that God gave at first to his selected people the Jews or was in them by nature In the time of the Patriarchs all supream terrestrial just power Paternal Sacerdotal Regal was in them They were before the Law given in the place of Kings and Priests What power can we find that God gave unto his people or was in them when he gave Kings to rule over them a government most agreeable to nature and which carrieth with it the most appearance of the divine approbation and imitation a Government in the infancy of the world proceeding immediately from the Patriarchical derivatively and ex traduce We find in the first age of the world after the Floud mention made of Kings which ruled every where Genes 14. Deut. 17. and of the first war wherein many Kings were ingaged and no mention of any other Government then Regal Genesis 36. Deut. 14. De Civit Dei lib. 16. c 17. c. 3. There were diverse Kings of Edom and in all the Countreys round before there was a King in Israel In the time of Abraham saith St. Austin eminentia regna erant Sycionorum Egyptiorum Assyriorum and before that time rose up Nimrod saith he factum erat initium regni ejus Babylonici And here by the way we meet with an argument of the Anabaptists which is that seeing from such a Tyrant Monarchy and Magistracy had so evil a beginning it ought not to be held lawful But there is a difference between the powers which are of God and the administration or the evil execution of those powers as there is a difference between a lawful power unjustly used and an unlawful power justly used for as St. Austin saith the malignity of a tyrannical usurpation shall never be purged and made praise-worthy although the usurper use all clemency and justice in his Government nor the Regal power ever be subject to just reprehension although a King become a Tyrant Causa 14. quaest 5. cap. 9. Aliud est injusta potestate justè velle uti aliudest just â potestate injustè velle uti Although Tyranny did begin by Nimrod yet Government and Magistracy proceeded not first from him It was established by divine decree before him The government of the Fathers of the Families was before Nimrod All the Progeny submitted to the Paternal and Regal government of the Head and Founder of the Family From hence was the original of Regal government and a natural reason and cause for the producing and continuation thereof which reason had its operation amongst the heathens In the beginning were Kings Salust Tacit. lib. 3. Ann. nam in terris nomen Imperii id primum fuit But after equality and moderation were laid aside and ambition