Armies Parliament under which power they still afterwards did sit and act leaving the Parliament without any Lawful adjournment sine die sine capite sine corpore This Law for continuation of the Parliament so directly contrary to the institution and essence of Parliaments and the undoubted right of Kings to call and dissolve Parliaments was another new and strange Law Lex nova inaudita as was said of the Roman Law Agraria from which great seditions took their first rise and from those seditions Civil wars which never were fully ended until that Common-wealth was utterly destroyed by the usurpation of Julius Caesar Salust Paterculus It was a Law quae summa miscuit imis a Law unde jus vi obrutum erat For the iniquity of our two Statutes before mentioned they may fitly in many respects be compared to this Law Agraria which Tiberius Gracchus the Tribune of the People preferred to flatter the People to continue himselfe in his office that he might be the more safe from the Nobility and rich men his enemies the better bring his designes to effect This Law being very plausible to the Commons Julius Caesar revived to assure the People unto him and to obtain their compliance with his usurpation It was a law seditious in it self serving aptly to imbase and make contemptible the Majesty of the Senate and Consuls but in respect of the meanes used to make it pass with their votes it was abominable for tumults were raised on purpose and such violence was offered to one of the Consuls for opposing it that the Ensigns of office carried before him were broken Plutarch in the lives of Caesar and Pompey and a basket of dust thrown upon his head and two Tribunes and some others in his company were wounded and soon after came to an end the Roman glory and their liberty Insomuch as many of the wisest seeing the madness of the People and their contempt of Laws and their former government thought themselves happy if the Common-wealth was no worse afflicted then with the burthen of an absolute Monarchy It is not the retaining of some of the usual form and solemnity as was in the making our two Statutes that maketh a binding law if the principal and essential parts and properties of a Law be wanting For a Law hath no force nor virtue when the material and final causes and reasons of a just Law do cease and are determined and the execution of that Law would prove injurious or absurd And so a Law or Grant whose foundation and ground is laid upon a fiction or presumption of a fact or thing which never had any existence and being Medina Felin alii Ancharan Decius alii Decis Rotae Rom. hath naturally no force efficacy as having no consent of the will but onely under an implyed and supposed condition Quae reipsa non extitit sic veritate facti deficiente totum legis desicit fundamentum quia haec est obligatio quasi ex falsa causa quae nulla est obligatio cùm deficiat voluntas ejus qui se obligavit cum aliquo praesupposito deficiente veritate dicti praesuppositi Jus supposititium lex improbat Moreover if a Law although it had at first just causes and reasons for making of it which after fall off and cease doth lose its force and vertue what may we say of our two Statutes and some others made in this long Parliament which in lieu of just and legal causes and reasons were fraudulent pretences and illusions put upon the King to obtain his assent and to abuse the people for the advancement of evil designs and the strengthening of a pernicious faction In a stipulation or promise although for the making of it there was just cause L. 2. F. de except doli L. penult F. de condict sine causa Cuiac alii sed nunc nullam causam idoneam habere videtur vel causa non secuta aut finita est datur contra petitorem doli mali exceptio quia non refert utrum ab initio sine causa aliquid datum sit an causa propter quam datum sit secuta non sit vel ex post facto redierit ad injustam vel nullam causam ita ut datum videatur sine causa Inomnibus causis quae jure non valuerunt L. 54 F. de condict in debiti l. 36. de verb. obl vel non habuerunt effectum revocatur quod datum vel solutum erat All stipulations are in their nature stricti juris and therefore not easily made void yet if one be bound contrary to his will by machination and practise he may void such stipulation And so all other contracts grounded upon deceit are void or voidable where there is dolus ex proposito dolus dans causam contractui vel ubi res ipsa in se dolum habeat And the Law doth ever provide ne quis ex dolo suo lucrum habeat L. 36. F. de verb. obl Exceptio doli accomodatur ei qui aliter obligatus est quam convenisset licet alioquin subtilitate juris obstrictus esset nihilominus repellit agentem ex stipulatu ctiamsi nulla sit ab isto adhibita machinatio dum tamen ipsares in se dolum habeat And yet not every deceit nor every fear will void promises contracts and grants as that fear is reputed sufficient which may overcome a man indued with fortitude so that deceit seemeth by law sufficient which may deceive a prudent person so as the fear or deceit were the immediate cause without which the man would not have done the act But how far this fear or deceit shall extend according to the quality nature and condition of the persons and other circumstances and whether deceit errour and ignorance do more abolish the consent of the will then fear or violence is to be left unto the Judges as a question of fact and so the Interpreters of the Law agree after much diversity of opinions amongst them As in all grants and releases fraud is alwayes presumed to be excepted so shall they not extend unto that which the party granting or releasing may justly be presumed to have not had thought either in specie or in genere non ad inopiata incognita extenditur dispositio Decis Rot. Rom. Farinacii Decis Rot. Rom. Lib. 2. Cod. de rescind vend Lib. 7. Cod. Quando provocare nec ultra ea pro quibus factum erat so general words shall be restrained ad rationem causam propter quam fuerunt prolata and so in case of excessive hurt and damage per enormissimam laesionem aut error aut ignorantia aut dolus ex reipsa praesumitur A sentence and decree shall not bind if it passed through bribery and corruption per sordes turpitudinem ipso jure nulla est although the Law saith interest Reipublicae non convelli rerum judicatarum authoritatem quia
a long time the King that there was great danger they would have raised an Aristocracy or several petty Principalities so lofty was their carriage towards their King which in time would have strangled the Monarchy and all under the pretence of the publick good which drew on that long and destructive war called the Barons war and made it the more plausible and popular After these combustions ended and the King the Lords and people were reduced to reason and moderation which often was wanting on both sides then the Statutes made in the time of King Edward the First and Edward the second had these words Statutes made by the King in Parliament at the request and petition of the Commenalty with the assent of the Prelates and Pears And so in the Fifth year of Edward the Third at the instance and special request of the Commons with the assent of the Prelates and Peers we have ordained and established and so in the succeeding raign of Richard the Second and in the first of Henry the Fourth Thus did the force and efficacy of our Lawes proceed from the Kings Legislative power acting by and with the concurrence of the three Estates in Parliament contributing their assistance according to their respective duties and the trust reposed on them This concurrence doth serve excellently for the direction regulation and in some respect for the qualification not for the diminution but for the support of the Kings power and rights The absoluteness and generality of this Regal power being also in many cases often restrained in the administration of Justice in the inferiour Courts of Justice by the Common Law of England and by the Lawes and customes of other Kingdomes And therefore the assistance and concurrence of all the Estates in Parliament cannot amount unto the raising of any coequality or competition of power the influence of the Soveraign power is that which giveth life to the making and to the execution of all Lawes both Houses of Parliament acting according to their duties and not exceeding their bounds the rights and prerogative of the King is neither restrained nor obscured but guided strengthned and carried with greater vigour and Majesty for his and the Peoples most good and security If our Kings had any co-partners in the Legislative power or were less in Parliament then when they were out our Judges have been much out and deceived him and others in affirming oftentimes to the Kings that in no time they were so high in their Royal estate as when they sate in Parliament The Canon-Lawyers say the Pope is greater when he sitteth in a General Council in respect of the amplitude of knowledge and the spirit of discerning After the Romans had transferred all their Supream power to their Emperours yet did the Senate afterwards make divers Lawes called Senatus consulta which were often concomitant or subsequent to the Imperial Edicts yet this was never held to be a conferring or communicating of any part of the Legislative Imperial power no otherwise the Kings of France do grant to the Parliament of Paris when their arrests concurr with the Kings Edicts which are there usually ratified Cujacius Pet. Faber Semest lib. 1. cap. vult Optimi Principes non dabant ullam constitutionem sine authoritate sententia Juris-consultorum Edicta Principum Romanorum sic Regum Galliae plerumque subsequebantur Senatus Consulta Quod Principi placuit legis habet vigorem leges condere soli Imperatori concessum est legis interpretatio solo digna Imperio est Imperator solus conditor Interpres Legum est Institut Jura nat gens Lust Cod. de legibus Tit. F. de origine Juris Lib. Feud constitut Lethaeri Fred. Imperator licet Augustus Caesar constituit viros prudentes ad jus interpretandum ut major juris authoritas haberetur The Emperours since have made their Lawes hortatu consilio Archiepiscoporum Episcoporum Ducum Marchionum Comitum Palatinorum caeterorumque Nobilium Judicum yet this was never holden to be a communicating of their legislative power Long time in the French Monarchy Lawes and Edicts were made by the King per suum magnum Concilium as in England and so were causes Civil Criminal and Fiscal determined and judged by our Kings or his Council or by his delegated poer to others before the Courts were established at Westminster as appeareth by our Histories and Records The three Estates in France and Spain did never in the former times when they were most in use and power challenge any part of the legislative power neither did their Historians and Lawyers ever grant it to be in them for ought appeareth Bodin doth acknowledge that in England the excellent institution and use of Parliaments hath longest continued De. Repub. and saith that legum rogatio probatio non arguit Imperii majestatem licet autoritatis speciem Ordines Angliae autoritatis quaendam habeant jura Majestatis summum Imperium est in Principe And so a learned Hollander Grov de Jure belli lib. 1. C. 3. no slatterer of Monarchy saith they are greatly deceived qui existimant cùm Reges acta quaedam sua nolunt rata esse nisi à Senatu vel alio caetu aliquo probentur L. 8. F. de Constitutionib L 1. Cod. de legib partitionem fieri potestatis The supream Senate is as the Emperour in the Golden Bull calleth the Princes Electors partem corporissui columnas latera solidacque Imperii Bases jus dandi suffragii in Comitiis Imperii Germanici non trahit secum majestatis communicationem cum majest as indivisibilis sit nec Electoribus Principibus aut Statibus Imperii communicari poterit Tamen nihil majestati detrahitur si in partem solicitudinis Imperatoris invocentur exemplo veterum Imperatorum Romanorum qui et si habuerint summam potestatem ut quodcunque Imperator Edicto statuit legis habebat vigorem nihil tamen magni ponderis sine consilio consensu Senatus expediebant * Arumns ad aur bul non obstat quod dicitur in L. 1. F. de constitutionibus Quod Principi placuit legis habet vigorem quia sequitur in fine legis non quiequid de voluntate presumptum est sed qùod concillo magistratum suerum Rege auâ—â—ritatem praestante habita super hoc deliberatione tractatu recle fuerit definitum Bracton Fleta L. 8. Cod de Legibus Bartolus ali L. 1. F. de legibus Moreover long before the Empire was established in Germanie when the Roman Emperours granted unto diverse Princes and States of the Empire that without them and that form by him prescribed lawes should not be made or held effectual nisi supradictà formà observatà ita ut universorum consensus nostrae serenitatis autoritate firmetur c. It was never holden by the interpreters of the lawes that the Emperours did or could by his grants
passe away or communicate any part of their inherent individual legislative power The several estates conjoyned in Parliament as the Lawyers say in other cases do assist non per modum limitationis sed per viam ministerii necessarii quia leges condere est maximus meri Imperii gradus de reservatis Principis in signum supremae potestatis Iusta legitima lex est quae processit ex civium concessione voluntate spontanea Lex est communis spensio Reipub quia in legum observationem quilibet Civium spondere videtur This rule in law ought to have place in all Monarchies as well as in Common-wealths and free States it being so agreable to justice and the preservation of all mens rights Yet our Statutes made in Parliament are the proper acts of the Kings legislative power with the necessary assistance of the three Estates sed nec communicato nec diviso Imperio To communicate he ought in Counsel but not communicate his supream rights of Empire for his Empire is not so much permitted by God to his absolute power as it is by him committed to his faithful care for the preservation thereof and the Peoples welfare and unto him he must give an account CHAP. XVIII Of the Kings Prerogativ ' Our Innovators do not rest at the quarrel against the Kings legislative power and other his Regal rights but many of them fly at his whole prerogative The very name is odious unto them through ignorance or malice The prerogative of the King is supported by the Common law of England and it doth often serve to support the Law and the rights of all men both of them do give and receive vertue and strength to and from each other The Emperours in their Lawes say Authoritate juris penà ct nostra authoritas The Regal prerogative Ld. Chanc. Sir Edward Coke postnati is called Lex Coronae and it hath ever been reputed a part of the Common Law of England and so lex Ecclesiae Anglicanae lex terrae and this lex terrae doth as formerly our regular Parliaments ever did fence and inclose the prerogative within its just limits as well for the safety and preservation thereof as for the welfare of the people which being the supream law is the scale and measure of the Kings prerogative For there is great use of the Kings prerogative especially when the ordinary course of law cannot afford that help or at least so speedily as is necessary not only to prevent injustice and wrong unto private men but also the prejudice or damage of the Common-wealth peradventure irremedial Tacitus Oftentimes tarda sunt legum auxilia But as the same author saith non utendum Imperio ubi legibus agi potest according to the rule in law qui communi auxilio munitus sit non debet uti extraordinario remedio The prerogative is not to cross and suppress the ordinary course of law and Justice if it may be avoided to the prejudice of the just rights and liberties of the people Psalm 99. the Kings strength loveth judgment he doth temper his power with justice when the ordinary course of law can be effectual the supream absolute power ought not to be used There is often use of the prerogative ex vijustitiae for moderating the rigor and for suppressing the abuse of diverse penal lawes made for terrour ut metus non poena ad omnes perveniat not to be preposterously used as snares to catch men by those Informers who often become the Catterpillars of the Common-wealth and are more evil then necessary whereas the best of them are accounted in the number of necessary evils Instruments these are made for the draining of mens purses not for correction of their evil manners when the penalties exacted seem rather as a price set upon offenses then a due punishment of them Vbi omnis domus delatorum interpretationibus subverteretur Tacitus L. 4. Cod. de Delatorib utque antehà c flagitiis ita tunc legibus laborabatur graviora remedia quam delicta erant omnibus notorium sit hos nunciatores execrabiles esse qui consequendi praemii causa à enunciant adeò turpe est delatoris nomen L. 3. Cod. de Injuriis ut injuriarum actione tenetur qui hominem delatorem appellat Penal lawes thus executed prove oftentimes as pernicious and raise as much hatred against the Prince as the overstraining and abuse of his prerogative or the exercise of an arbitrary power in government * As was the case of Empson and Dudley in the time of Henry the Seventh Corielanus was banished Rome ut nimius exactor Legum Halicarnase 8. summum jus summae crux such men for their reward are often made publici odii piaculares victima But if a King hath not a supream power his government will be very defective and he is rather to be esteemed a titular King then a King invested with Regal Soveraignty although it is necessary to have this regal power restrained in many cases by just lawes and by the prudence of Judges in courts of judicature for the good of both Prince and People Ea demùm tuta diuturna est potentia Valerius Maximus lib. 4. c. 1 quae viribus suis modum imponit legitimis vinculis constringendo ut longius à licentia ita propiùs ad benevolentiam as the wise Spartan King said And yet they are much deceived who think Kings can be never too much restrained and esteem the most limited power the best and safest whereas the best limited power and most likely to preserve peace between the King and his Subjects is that power which as much as may be is regulated by the foundest most perfect and equal lawes between the Prince and the people For the ancient wise men philosophers and Law-givers did not approve of those governments as the best where the supream power was most restrained but where the justest lawes were and the most care for the execution of them The liberty necessary for the Common-wealth Guicciardine is that liberty which serveth as the handmaid of Justice and is to it applyed and appropriated Moderata libertas omnibus salutifera Livius immoderata omnibus gravis possidentibus eam periculosa The Romans who were most careful in preserving just liberty and enemies to unlimited power and arbitrary government Livius Grot. de jure belli were oftentimes constrained to constitute a Dictator with supream authority exempt from the legal forms and strictness of positive lawes who in the time of his Dictatorship by the same power did all acts as a King neither could any other make them void and the reason they gave is ne capiat Respub Livius lib. 2. detrimentum Creato Dictatore primùm Romae ut intentiores essent ad dicto parendum neque provocatio erat ueque ullum usquà m nisi in diligemia parendi auxilium And may there not oftentimes be as
Gods word or from thence to be probably deduced and inferred They catch at every Text of Scripture as their fancy leadeth them according to the old and usual course of Hereticks and Schismaticks to prove their own and destroy the old Church Government without any consideration of the Expositions of the Antient Fathers or Modern Divines or any regard how wilfully they pervert and abuse the Word of God as those who have largely and learnedly handled these points have made appear * S. Hierome sheweth us such men in his time qui quicquid dixerint boc legem Dei putant nec scire dignantur quid Prophetae quid Apostoli senserint sed ad sensum suum incorgtua aptant testimonia quasi grande sit non vitiosissimum docendi genus depravare sententias ad voluntatem suam Scripturam trahere repugnantem Epist ad Paulinum The unlearnd and unstable wrest the Scriptures unto their own destruction 2 Pet. 3.16 But seeing they deal thus with the Scripture it cannot be expected they should regard humane Laws neither the power given by God to Kings and to his Church and to make such Laws as carry with them both a directive and a coercive power Such Laws and Constitutions I mean as are in no respect repugnant to Gods word but are deduced from the general rules thereof and grounded upon the varranty left by our Saviour and his Apostles as â—uides and limits for the Church in all ages Humane lawes are measures saith Aquinas in respect of men whose actions they direct and govern and these measures have their higher rules by which they are to be measured which are the laws of God and nature Those Laws therefore have the essential parts and properties of the best positive Lawes which the Lawes of God do approve and are such as are extracted from the light and law of Nature and the common and demonstrable precepts thereof most agreeable to common equity and are most necessary for the preservation of the peace and welfare of the Church and Common-wealth It is therefore a false and dangerous doctrine of theirs that it is not in the power of the Church or State to restrain and bar men by Lawes from their liberty which God hath granted unto them no more then it is to take away the yoak which God hath laid upon them and to countermand that which he hath expresly injoyned They may find a difference between the liberty granted us by God and nature which is restrainable and the eternal precepts of God which are immutable By this doctrine the power of government is so restrained and so weakened as that the frame and pillars thereof are shaken and the difference almost taken away between the things of greatest weight precisely defined and injoyned by the Word of God to be observed alwayes as are those which the Schoolmen call his negative precepts and those other things of less moment which have little or nothing of precise and perpetual commandment but more of liberty granted unto men by God and nature and yet not exempted from the power of the Church or Magistrate to alter or restrain according to special occasions and variations of times In this miserable age wherein we live we are to deal with men such as the antient times never produced men who rest not upon the disobedience of Princes and contempt of Laws Divine and humane but teach and practise the introducing of new orders and discipline in the Church and State by sire and sword and do destroy those men and their estates who joyn not with them Men who gather themselves together against the soul of the righteous and condemn the innocent blood Psalm 94.21 Such men are not to be found save in the time of Antichrist mentioned by the Prophet who shall wear out the Saints of the most High and think to change times and laws Daniel 7.25 The doctrine of the Gospel much less the Discipline of the Church ought not by such means in any case to be brought in or established Apud Christianam disciplinam magìs occidi liceret Tertul. Bernard quà m occidere non est religionis cogere religionem Religion saith Saint Austin is planted and preserved by instructing more then by commanding by admonishing more then by threatning 2 Corin. 1 24 Cap de Judaeis Dijlinct 45. Not that we saith Saint Paul have dominion over your faith Praecipit sancta Synodus nemini ad credendum vim inferri cui enim vult Dous miseretur quem vult indurat The sword availeth little with the souls of men unless to destroy them together with their bodies and to make men desperate or dissemblers in Religion and when they find opportunity to fall into rebellion as there are many examples The old just and necessary Edicts made by the best Christian Emperours against Hereticks and those who were of a contrary religion to that which was publickly received and established were but Civil and Political Lawes for the tranquillity of the State and People quae pacis perturbatorum pervicaciâ exasperanda sunt parentium et obtemperantium bono temperandaet moderanda sunt Thuan Epiff in prin ipio Hist and this K. James declared when he set forth the oath of Allegeance Those Imperial edicts did not punish men for their diversity of religion neither gave them toleration their scope and end was not to inforce the conscience D. Hieronym but to preserve the Peace Aliae sunt Leges Caesarum aliae sunt Leges Christi alind Papinianus Epist 48. 50. aliud Paulus noster docet And yet Saint Austin doth allow of the punishment of some hereticks by pecuniary mulcts or banishment as being not repugnant to Christian lenity and sheweth that many of the Donatists were by the terror of Laws and edicts brought to the Catholick Faith and to unity in the worship and service of God D. Bernard ser 66. super Cant. Aliqui meliùs procul dubio coercentur gladio illius videlicèt qui non sine causa gladium portat Rom cap. 13. quà m ut in suum errorem multos trajicere permittantur Some discreet coercion may oftentimes necessarily be used towards those who contemn or neglect the service of God and the preaching of his word the means of salvation The parable of the marriage feast saith Luke 14. compel them to come in that my house may be filled Melius est cum severitate diligere quà m cum lenitate decipere Auguslin Parcere alienis peccatis quae dedocere objurgare debemus hoc est propter quaedam cupiditatis vincula non propter Charitatis officia But in the antient times of Christianity such means were not used as might make Hereticks Schismaticks more obstinate then docible through the preposterous proceedings of the Magistrates and Ministers of justice in the execution of penal Lawes used rather as snares for gaining of money and pecuniary mulcts imposed rather as prices
acts if force of fraud used to procure the absence of one of the members may make all their acts invalid C 28. de Elect. plus nocet unius contemptus quam contradictio multorum according to the rule in the Canon Law which sayeth also si eos vocatos non fuisse constiterit sed contemptus infirmanda erit penitus electio taliter celebrata Stew Chron. Upon which Gardner Bishop of Winchester his assertion seemeth to be grounded who being prisoner in the Tower wrote to the Lords in Palliament claiming his priviledge of Parliament and said that if the Rulers in a General Councel let any mans repair thither who of right ought to be there whatsoever is there concluded is by a universal Law taken to be of no force by excluding one member wrongfully that should furnish the body The body ought to be entire and compleat The Interpreters of the Civil and Canon Law say when we name a People we are understood properly to intend the whole or at the least the major part and when we mention the Chapter Capitulum we are presumed to intend the whole body or number appellatione rei venit res integra qui de quantitate lequitur de toto loqui censetur quando natura rei subjecta materia hoc exigit vel alioqui actus esset elusorius But seeing all the members of a Parliament or of any great Assemby or Corporation cannot come alwayes together therefore by a universall Law or custome the presence or concurrence of the major part of the whole or of those who are present most commonly doth prevail L. 3. 4. F. de Decurionibus L. 3. F. de Decretis qui à duabus partibus Cardinelium electus fit Romanus Pontifex habetur In aliis electionibus quod fit à majori saniori parte Capituli valet consueta forma servata De electione cap. 6. Decretal By the civil Law there must be in their Senate Councel house and Municipal Courts two third parts of the whole number present for pasting any act of importance duabus partibus adhibitis Totius quia illa decreta non valent quae non legitimo numero decurionum coacto facta sunt But those acts had the force of Lawes to binde all men which were examined ab omnibus proceribus in gratiosissimo Coetu L. 8. Cod. de legibus collectis omnibus recitantur cumomnes consenserint tunc demùm in sacro nostri numinis Consistorio recitari ut universorum consensus nostrae seremtatis authoritate firmetur This was the course observed in makeing their Lawes for if men when they choose arbitrators or Law-makers when they constitute Judges L. si in tres L. item si unus F. de recept arbitâ—is L. Pluribus F de Pro. curatoribus L. si plutes l. cum plures F de Administ Tut. L. 37. F. dere judic or Princes when they grant a delegated power in private mens causes are never supposed to approve of that which one man or the fewer number of them do order or decroe unlesse somewhat appear to the contrary but onely of that which is agreed by the major part all beeing present at the deliberation and debate quia tunc judicare intelliguntur cum omnes adsint licet omnes non consentiunt There is then much greater reason for the presence of the major part of the whole number in the supream Courts Councils and Parliaments ubi de summà Reipublicae agitur And so may we presume was the intention of all Law-givers and founders of Common-wealths although not expressed unlesse necessity in some special cases and accidents doth otherwise require In such accidents the Law sayeth L. 45. Cod de Decurionibus paucorum absentia sive necessaria sive fortuita non debilitat quod a majori parte ordinis salubritèr fuit constitutum But in Parliaments there is most reason for the presence of all the members for many respects and cheifely because all every County City and Borough who are to send their own Deputies Representatives be not without being heard bound by the votes of others in all things as well concerning their own particular as the Common Interest who are peradventure ignorant and regardless of their condition and men whom they never knew nor to their election gave their consent For in other Assemblies Councels and Courts there is not as in Parliament of all Persons states and degrees either personally or virtually by representation and intendment of Law the presence and as it ought to be to make a just and compleat Parliament according to the ancient and continued Laws and customes of this Realm and of other Kingdomes And therefore the excluding of the Bishops and in them the whole Clergy ever reputed one of the three estates in all Kingdomes and called Brachium Ecclesiasticum seu spirituale must needs be injust and prejudicious to the Church and common-wealth and make a maimed and dismembred Parliament the Clergy being barred from having their own Representatives and Deputies in Parliament whereby the Common-wealth is deprived of their advice and assistance which may be and oftentimes hath been found to be of excellent use in respect of their great learning and judgment wherewith many of them in all times have been amply adorned and many of them of great fame for their piety and martyrdome and have as appeareth in histories shewed their love to their Countrey by many acts and testimonies and in some times to their own destruction for opposing the most powerful persons when the greatest men of the Laity who for the most part are of much inferiour abilities have shrunk off and been silent I cannot therefore perceive how we may approve of the opinion of those who hold that good Acts of Parliament may be made excluso Clero and take the example of Edward the first for a Law who because the Clergy would not still supply him with mony after they had given him many great summs he put them out of his protection and then called a Parliament without admitting them This being the case it is an ill argument à tali facto ad jus faciendi As if we should say the King and the Peers can hold a just Parliament and make Laws and Levies of monies without the Commons because long time after the Norman Conquest Laws were made without them which are still reputed good Laws In England as well as in other parts of Christendome in the time of the Saxons Bishops were called to their Parliaments and after the Norman Conquest they were called as other were who held by a Barony Their tenure as well as their function did warrant it In the Constitutions of Clarington in the time of Henry the second it is said according to the Canon Law Chronic. Gervasti alii that Bishops as other Barons who hold of the King in Capite debent interesse Judiciis Curiae Regis quousque pervenitur ad mortem
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
rebus judicatis stat status Reipublicae Neither shall a Judicial decree prejudice one under age L siquidem Cod. de Praediis minorum Exravag de reb Eccl. non alienandis l. 5. penult F. de reb eorum qui sub Tut. l. 4. Cod. quib ex cau major l. 35. F. de rejud Cuiac l. 1. F. de just jur neither the Church if any of the legal solemnities injoyned by law are wanting for dolus reipsa praesumitur inesse Or if such decree be surreptitiously gotten then no propriety or right doth pass thereby from the Minor or Church but still they may have their action real or personal non tantum in personam sed in rem ipsam Pacta contra jus Reipublicae non valent hoc ad Ecclesiam trahi debere quae in jure semper comparatur Reipublicae nam jus publicum quod ad statum rei Romanae spectat etiam in sacris sacerdotibus consistit The interpreters of the Law say Ecclesia Respublica minores circumventi vel lapsi in integrum restituuntur ergo Princeps for above all the law is most favourable unto the Prince His Patents Charters and Grants according to common intendment and the usual clause inserted are to proceed from him ex mero motu certa scientia All his Grants and contracts are bonae fidei Baldus alii rather then stricti juris and ought alwayes to be interpreted ex bono aquo He hath many singular priviledges by the Civil law and by the Common law of England He is not deprivable of remedy against undue forms as he can do no wrong so shall he receive no prejudice through the defects in Legal forms The inserting or addition of any words or clauses prevail not against him when there is cause to presume that he was ignorant or deceived There ought not to be with any man but there must not be with him a striving saevâ praerogativâ verborum contra juris sententiam nec rei gestae veritatem ulla scripturâ mutari as in the Roman law If there are legal and strong presumptions praesumptiones juris de jure quae pro liquida probatione habentur that his grant did not proceed from his certain knowledge and meer motion but was surreptitiously gotten no words prevail but the more forceable they are Baldus the more fraud they carry with them Vbi abundantior est Cautela evidentior fraus praesumitur quod quis ita cautè facit ne fraudem fecisse videatur major periculosior fraus ex eo praesumitur Clausulae cautiones insolitae ipsum actum magis suspectum faeciunt Beldus Decius alii licet abundans Cautela non nocet tamen quod dubitationis causae tollendae videtur poni si sit insolitum suspicionem inducit contractum simulatum arguit Injustice the more it hath of the shew of legality the more mischief it worketh That lye is the worst saith Quintilian which seemeth to come nearest unto the truth Nulla major pestis est humano generi justitiae Cicero offie lib. 1. quam eorum qui cùm maximè fallum id agunt ut boni viri esse videantur This clause of certain Knowledge doth not work effectually nisi circa ea quae Princeps praesumitur scire prout sunt ea quae in jure consistunt secus circa ea quae in facto consistunt de quibus saepe praesumitur ignorantia ejus Decis Rotae Rom. Farinacii 656. pars 2. Neither can that other forceable clause of meer motion hinder a just exception and be a barr from making deceit appear which deceit may proceed vel ex re ipsa vel ex parte impetrantis quando ex suggestione ejus obtinetur Et cum emanaverit ad supplicationem supplicantis censetur Papa vel Rex aliquis se fundasse super narrata si narrata non verificantur Decis Rotae Rom Durandi gratia confirmatio vel rescriptum corruit Yet notwithstanding a man may be said to grant of his own proper and meire motion although he accepteth the petition of the party when he is not moved to grant only because the other desired it but of a willingness also and bounty in himselfe Decretal de rescriptis c. 20 In the Imperiall Law it doth often occur nos amoventes quicquid surreptitia impetratio furtiva deprecatio vel potentia alicujus elicuit Vbi literas impetrant à nobis per fraudem vel malitiam L. 2. l. 6. Cod. tit si contra jus vel uti litatem publicam Coveruvias var. resol l. 1. c. 20. l. 3. l. 1. Cod. de precib Imp l. ult Cod. si 〈…〉 pubil veritate occultata vel suggesta falsitate If those acts are void or voidable by Law which are defective in respect of the form or in respect of the indirect manner or means used for the obtaining them as force fraud false suggestions or concealing a truth necessary to be known ubi mendacium reperiatur sive in facti sive in tacendi fraude those acts also are undoubtedly void in the matter and subject which are utilitati publicae adversa vel juri communi and such are those which are against the just and ancient rights of the Crown against the fundamentall Laws and the just rights and liberties of the subjects L. 7. F. de pâ—ctis l. 112. F de legatis 1. l. 5. Cod. de legibus for such are against the common peace and weal-publick Nec pactum nec jusjurandum à jure communi remotum servandum est Jusjurandum contra vim authoritatem juris nullius est momenti But a Law is of greater concernment then either the contracts of private men or the grants and ordinary Charters of a Prince If equity be wanting to a Law the vigor and life of it is wanting Legum parens est aequitas Cicero l. 90. F. de regulis Ju. is in omnibus maximè in jure spectanda est aequitas Our Lawyers sinde in their books that when an act of Parliament is against common reason or common equity or cannot be executed without doing wrong the common Law doth controwl that act and doth adjudge it void agreeable to that rule given by the Interpreters of the Civil and Canon Law statutum potius interpretandum ut nihil operetur quà m ut iniquitatem contineat And yet notwithstanding all this that hath been said some of our Lawyers delivered their opinion being required by the King that this Statute for continuation of the Parliament during the pleasure of both Houses was not void in Law although by that Law the King was almost laid aside or used but as a cypher and little account made of his negative voyce in Parliament in respect of their new usurped power to make Ordinances so as the Parliament was changed from being the great Councel of the King and became as the Roman and Venetian Senate and
they abused that power also of siting during their pleasure and so made a forfeiture thereof if it could have been lawfully granted unto them Thus contrary to the intention of both King and People and contrary to the reasons on which their rights and liberties are grounded and contrary to the fundamental Laws of the Kingdom and contrary to the office and duty of those elected members and to the nature and quality of all delegated power and authority Procurators Deputies or Representatives became masters of all and perpetual Dictators and did work all their iniquity by a Law There is another way of fraud used to circumvent Princes which is to observe an opportunity offered them by occasion of some necessities and straits into which Princes often fall Many learned men affirme that all bindings and tyes of Kings although by vertue of a Law upon the onely advantage taken of their necessities and straits in their affairs maketh the breach of that Law justifiable inasmuch as any constrained assent is never reputed a Royal assent neither a durable assent Amongst many examples there is one of our glorious King Edward the third in or about the fifteenth year of his reign who went roundly to worke in such case and voided certain things formerly granted by himselfe in Parliament alleadging that those things by him granted were contrary to his oath and the rights of his Crown which he granted not of his free will but that he dissembled at that time to avoid those eminent dangers which would have ensued upon his denial Yet may we not approve Machiavils doctrine Cap. 18. of his Prince that Princes may without dishonour break their faith when the observation thereof turneth against themselves or the cause which urged them to promise doth cease albeit mans assent or denyal is feeble and defective when he is surrounded with inextricable difficulties and oppressed with violent perturbations and then to take an advantage thereof is neither fair nor firm for when strong and violent perturbations and affections have possessed the mind all Laws allow them for just causes of qualifications of offences and mitigation of punishment in most cases Sereca Non est facile inter magna mala non desipere quid mirum est animos inter dolorem metum oberrasse They who seeke to hold Princes or other men to the strict observation of promises drawn by the advantage taken of their necessities and distresse can never have any sure hold of such promises neither of their affections It will never dye in the Romans hearts Livius lib. 9. but will alwayes be fresh in memory whatsoever shame the yielding unto their present necessity shall brand them with Princes have or at least they take unto themselves a larger scope and latitude then other men can or may when as the freedome of their will is straightned by any coaction or necessity and upon reason of State do they proceed more then upon rules of Law or axioms of Philosophie Plin. Paneg. L 10. F. de condit Instit L. 79. F. de Jure dot l. 63. F. de condit demonst and may sometimes do that justifiably which private men may not non potest non nimium esse privatis quod Principi satis est Howsoever Princes shall not be tyed when other men are freed from those stipulations contracts and conditions quae laedunt pietatem existimationem verecundiam eorum generaliter contra bonos more 's sunt quia nec talia facere posse credendum est Id possumus quod jure possumus Paria sunt impossibilia turpia A Prince when he is injuried or damnified may as the Schoolmen say in his defence or in vindication of his reputation which doth much support his authority act in a different manner and proceed to a higher measure and degree then private men for the injuries done unto him and the damages sustained by him much differ from those of other mens both in quality and extent Vt gravius peccatur in personam magis Deo conjunctam Aquinas sive ratio officii sive virtutis spectetur sic quantò aliqua injuria in plures redundat tantò gravior est ut est ea quae fit in Regem qui gerit Personam totius multitudinis sic redundat in injuriam totius But Princes as well as others are obliged to the observation of their promises and contracts by natural equity Seneca L. 1. l. 7. F. de Pactis Baldus Pacta conventa naturali aequitate rata sunt quae non sunt dolo malo facta nec contra leges Faith is expected more fully to be performed by Princes Exuberantior fides ab iis requiritur variatio inconstantia in Principe maximè reprobatur debet esse immobilis sicut lapis angularis sicut Polus in Calo. And therefore it is most dishonourable in a Prince aliquem speciem juris fraudi imponere aut fraudes captiunculas miscere Livius Lipsius Cicero Sleiden 19. Nat. Comes 3. Guicciard 5. Gentil de jure belli Lib. 2. c. 4. l. 2. Cod de legibus syllabas apices aucupari quod leguleorum est for which cavillations and carping at words two glorious Princes Ferdinand of Spain and Charles the fifth his Grand-son did suffer in their reputation and so did Lewis the twelfth King of France quod non Principibus sed leguleis dignas verborum ac pactorum interpretationes afferrent notam infamiae is incurrit qui ed astutè interpretari voluerit The Emperour Justinian gave amongst his Laws two good rules for Princes the one concerning the observation of their own contracts Imperialibus contractibus vim legum obtinentibus the other for observing their Laws digna vox est Majestatis regnantis Principem profiteri se legibus alligatum esse de authoritate juris pendet nostra authoritas L. 4. Cod. de legib For a Prince by breaking his faith and not governing his People according to his Lawes draweth upon himself hatred or contempt or both either of them are most effectual means to rend in funder the Pillars of his authority and the sinnews of his Government and when either of these have possessed the minds of men Florus novae libertatis avidi cupiditate libertatis incensi they are seldome removed by any art or industry and then all his actions good or bad shall have one and the same interpretation Tacitus Lib 3. c. 5. discur upon Livie Inviso semel Imperio seu benè seu malè facta premunt Machiavil doth boldly tell Princes that the same hour they begin to lose their State and Authority when they begin to violate and undervalue the antient institutions Laws and Customes under which they and their ancestors have lived long and happily Livius lib. 2. Imperii omnis vis in consensu obedientium est All Lawes Humane and Divine are against violent acquisitions except in a just war how just soever the cause be For
utile Faber adreg jur 90 〈◊〉 F de V sucapion quod non sit aequum Plura sunt in jure quae habentur bona licet non aequa aequitate derogatur propter publicam utilâ—tatem ob benum publici Status quamquam aliqui dicum omâ—e utile publico idetiam sit aequum sed propriè jus est ars boni aequi L 1. F. de lust jur Aquinas Faber ad reg jur 90. quia de justitiae fonte manavit justum est objectum justitiae sed à ratione juris aequitatis benignitas distinguitur jas ab aequitate bonum aequum à juris scripti ratione As 〈◊〉 had amongst the Lawes of Nations some that are not drawn from that which is properly equal and just sed usu exigente humanis necessitatibus Institut de Jusl. jure jura quaedam agentibus constituta sunt The like is to be said of some particular Lawes made in all ages in diverse Countreys and States which are not grounded upon that which is simply and properly just and equal but rather contrary and for that reason usu exigente humanis necessitatibus 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 oathes and ingagements made to Tyrants and Vsurpers I Come now from their seditious practises which I leave to their repentance unto the relation of some of their pernicious Principles which seem to be their Fundamentals To relate all those they sometime do mention if it were postible yet were it to little purpose Errours are prone to multiplication one begetteth another They affirm boldly that if a King perform not his duty his Subjects may compell him to it and that they are bound to obey him no longer then he doth govern according to his Lawes That the People may depose him from whom he hath his power and such like The People who are a Party must be the sole Judges Witnesses and Accusers And they would have it granted that Kings hold their Crowns but conditionally and generally from the election of the People If these be not granted their cause will fall to the ground for they want proof to support it The duty we owe to our Soveraign to our Parents to our wives and which the vassal oweth to his Lord which is the weakest of these are neither of them conditional upon performance on their part If this doctrine should be received all the world would fall into consusion Mutual and correlative duties ought not thus easily and perniciously to be dissolved It is against Christian Doctrine to requite evil with evil neither doth the Lawes allow as it doth in some cases Retaliations Compensations or Relaxations of such nature Cicero saith there are duties to be performed toward some persons from whom we have received injuries This doctrine were as ill for the Subjects as for the Prince if they breake the bonds of their duty to him and he thereupon should put them out of his protection and shew himselfe a woolfe and not a shepherd and afford them neither protection Justice nor mercy unto all which he is bound by his duty to God and his People The Doctors of the Laws are much perplexed in debating these two Rules in Law the one is that in vain he requireth the performance of a promise or contract to whom he refuseth the performance of that which he ought on his part to performe the other is that a man is not bound to performe his oath if that be not performed to him in consideration whereof he did swear and unto these rules they astigne diverse exceptions and limitations one is that regularly L. incivile 12 Cod. de rei vind l. nonidcirco F. De contrah empt Bartol P. decastro alii ubi contractus est perfectus obligatio nascitur ultro citróque non rescinditur propter inobedientiam alterius partis quod in contraclibus innominatis non licet agere ad resolutionens contractus data contraventione unius partis sed vel ad implementum contractus vel ad interesse The not performance of one party doth not make void the contract but the Law giveth other remedies to the party damnifyed for the Law doth not favour null sications and requireth in cases doubtful such interpretation as is rei gerendae aptior ut actus de quo agitur valeat potius quam pereat Although in divers promises and transactions and in leagues and truces yet this of truces is much controverted the breach of one party is holden to be a dilcharge of the other from the whole obligation upon this reason * Accursiue Alexander Alciat alii voa est juris et legum frangt posse fidem ei qui fregerat prius sidem qualemeunque fidem nudam vel juratam Cuâ—â—ius ad Dâ—â—etal de jure jurandâ— cap. 3 c. 9. quia siagula Capita conventionis insunt conventioni per modum mutuae contemplationis correspectivè positae sunt we dâ—bet contractus claudicare ex una parte ex uno latere sidem frangenti sidem non esse servandam quod dictum reserendum esse ad unam candemque conventionem ad ed quae una cademque sponsione comprehensa sunt in promissionibus quarum altera alterius causa facta est cum connexorum sit unum idemque judicium sed secus est in diversis separatis But notwithitanding all these distmctions and immations in contracts and obligations Civil all agree that in those duties which are mutual by the Laws of God and nature as between the Father and the Son the Husband and the Wife the Lord and his Vassal the Prince and his Subjects the breach of duty in the one is no discharge unto the other Those have little regard of the breach of Paternal Filial or Matrimonial duties who regard not their duty to their Soveraign A gainst the Father against the Husband against the Lord and against all others the Laws provide remedies for injuries Quintilian ne sui quisque doloris vindex sit but the King is exempted from the coercive power of Lawes although he is obliged to do right unto all men When the Israelites desired a King 1 Samuel 8. God commanded Samuel to shew unto them what hard and unjust pressures might fall unto them from some of their Kings lest peradventure in being not forewarned they should murmure against God who notwithstanding they were his selected people yet he gave them no licence in any case to depose chastise or disobey evil Kings For by the same decree of God evil Kings are set over us by which the authority of all Kings is established Bonos Principes voto expectare Calvin Instit. Tacitus qualescunque tolerare was the saying of a wise Heathen Hereupon it is very aptly and wittily
restramed and altered libertas naturali jure continetur dominatio ex jure gentium imroducta est Sicut jus gentium permittit multa quae jure naturae sunt vetita ita quaeuam vetat permissa jure naturae And we our selves may relinquish many rights and liberties which we have by the Laws of nature and nations but not our duties neither may we wave those precepts of the Law of God and nature Institut de jushtiâ jure Cujac alii as honestè vivere alterum non ladere suum cuique tribuere But in many things natural right and common equity may by a greater equity be rescrained Alia est aquitas simplex alia aequitas summa summa seu major aequitas est quae maximè spectat ad utilitatem publicam ad humanae societatis vinculum sed tunc jus naturae naturalis ratio non mutatur in se sed causa subjectiva seu materialis mutatur vel circumstantiae casus variantur and then the positive Laws of several nations and customes do and may adde and detract from the Laws of nature and nations L 6 F de Iustit jure Jus civile neque in totum à jure naturali vel g mium recedit neque per omnia ci servit accidemia juris naturalis divini ut sunt circumstantiae personarum temporum locorum mutabilia sunt manente vt ac virtute istorum jurium immutabili hee tunc producere pessunt necessariam dispensationem limitationem sen declarationem dicunt Doctores Covaruvias Declarari humana lege potest jus naturale tolli non potest limitart declarari in multis potest tam per interpretationem inter jus aequitatem interpositam Navari Manuele quam per justam dispensatienem per consuctudinem rationabilem Papa non potest jus divinum tollere potest ex causa illud moderari ac limitare nam quod in alio permmitti stculo in alio vetari nec justitia ergo varia mutabilis Augustinus Câ—â—â—o sed tempera non pariter cunt multa quae honesta videmur esse natura temperibus sunt inhonesta As a King cannot be discharged of his obligation to his People so cannot they be loosed from their natural allegeance to their Soveraign The faith between the Lord and his vassal is mutually obngatory but much more stronger is the obligation between the Soveraign and his natural Subjects by birth Dominus in his omnibus sideli suo vicem reddere debet Lib. de fendis tit de â—â—ma fideliâ—â—us Dictinct 93 cap. esto subjectus caus 22 quast 5. c. 18. cum Glossa Lucan L. 4. C. de origine l. 4. Cod de muntcip l. 1. S. 15. F. de ventre inspic Cod. fit si Curi lis l. penult Cod. de reseind vend Coke Postnati Case Eadem side tenetur Dominus subdito suo sicut subditus Domino A man may change his habitation but not renounce his countrey or allegeance to his Soveraign who is reputed the Father of his Countrey and the Husband of the Common-wealth Pater urbisque maritus Domicilium commutari incolatui renunciari potest origini non item origine propria neminem se eximere posse quia patria nascimur Impios se esse Patriam vitando demonstrant The Oath of Allegeance to our Soveraign or of sidelity to our Lord maketh not the Subject or vassal but it tyeth him more straightly An Oath is not alwayes of the essence of the thing whereunto it is applyed for Allegeance doth not begin by the oath taken at the Court-leet The very oath of Allegeance worketh not the bond in Law Between the Lord and the Vassal Juramentum non est de substantia feudi Feudatarius est obnoxius praestando juramento sidelitatis quod licet remittitur non tamen remittitur fides hominium sed onus subeundi juramenti Baldus and Iserna Cujac ad decretal Duarenus alii Operae officiales non cuiquam alii deberi possunt quam Patrono cum proprietas esrum in liberti edentis persons in Patroni persona cui edantur conslitit l. 9. F. De operib libertorum libertus natura operas Patrono debet Patronus operas officiales alii delegare non potest sed sabriles seu artisâ—â—ales potest delegare quia ha operae persone Patroni non cobaerent l. 26. S. 12. F. de condict Jud. 6. Sic propriè categoricè loquendo Patronus non potest clientem delegare vel alii cedere personam vel officium clientela quamvis possit alii cedere jura pecuniaria à cliente debita nec Rex Francia transferre potest in alium jus hoc quod habet in vassallum sive vassallagium vasallo invito Carolus Molinaeus ad consuetudines Partsienses cum alus Dux Britanâ—ia noluit pro Rege Gallia Regem Angliae quasi Dominum agnoscere quamvis à Rege Galliae delegâ—retur Car. Molincus Cujac ad lib. 1. tit 22. De feudis Julius Clarus de Feudis quest 28 The Duchie of Aquitaine refused to accept John of Gant for their Soveraign and said they were of the right and of the Dominion of the Crown of England and by the Coronation oath not to be alienated Frosarde History quia fides est de substantia non juramentum hoc juramentum non est obligationis introductorium sed confirmatorium obligationis efficacioris gratia in plus non obligatur sed efficacius majori vinculo So the Solemnities of the Coronation and the Oath there taken and given reciprocally do not confer and add more allegeance unto the Subjects or right unto hereditary Princes then they had by their birthright for the right of Succession was sectled before and ingraffed in the linage and family according to priority and proximity of blood by the Lawes of the Countrey and of Nations This Oath Kings ought religiously to observe because the administration of Justice the preservation of Religion and the welfare of the People are the principal parts of this Oath and of his duty not that his estate is hereby made or intended to be but conditional his person is tyed in conscience and in honour the Authority ceaseth not if he fail in performance The Oath and the Solemniqes of Coronation maketh not the Prince nor the neglect thereof doth not any way impeach his right They do declare the Prince and do admonish both him and his people of their respective duties and do conduce to the perfecting of the pledges and stipulation of each others faith Du Tillet Couronnement Sacre des Roys doivent prins intendus pur declaration on acceptation submissionau Roy designè de Dieu qui la conservè fait le plus proche de la Couronne non pour aucun droit qux subjects de doner la Royaume hereditarie per leurs voix ou Election Gloss ad decretal tit qui filii â—â—t
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
lawes and liberties lay his claim to the Crown ex concessione sancti Edwardi devicto Heraldo Rege but no mention of any consent or right of the People He did as other Conquerors sometimes seem to wave his title by Conquest lest touching that string too hard it would make a jar and hinder all harmony But his concessions and confirmations of the ancient Lawes and liberties proved for the most part but illusions Ingulfus Malmesb. Some of our Historians affirm that he changed most of the Lawes and made us accept his own Norman Lawes and customes delivered in the Norman language a mark of servitude imposed by the Romans where they had conquered Polid. Virgil. He moulded the English customes to the manners of his own Countrey and did forbear to grant the Lawes of holy King Edward Edmeruâ— Huntingdon Hâ—veden so often called for yet at the suit of the Barons the Laws of King Edward correboratae confirmatae erant quia veneratae erant prae caeteris legibus per universam Angliam And therefore our great Lawyer mentioned in our Law books did speak without book in saying that the Conquerour came not to out those who had just right and possessions but those who held wrongfully to the disherison of the King and his Crown He had more knowledge in points of Law then he seemed to have of matters of fact so long before his time As we cannot find anything that can manifest this inherent and original right of the People so can we not find in any case any colour of right in them to justifie their deposing limiting and chaftising of their King as our Adversaries affirm saving onely some matters of fact which they would have pass for Law and according to their usual course draw their arguments à facto ad jus Edward the second and Richard the second were charged in Parliament for oppressing spoiling destroying and the like and were deposed yet those Parliaments did never rely upon or mention the Peoples inherent and original right to justify their proceedings neither much insisted upon the proof of those crimes objected against them as causes sufficient to ground their most illegal and violent proceedings Neither did they hold themselves sure until they had by a conjuncture of fraud and force drawn those Kings to a seeming willing resignation acted in a form and solemnity abounding both in absurdity and horror For if the power and authority of Kings ceaseth ipso facto as our new men would have it for oppressing spoiling and destroying so that they may be deposed by their Subjects why was this power and right of the People never claimed and declared in any Monarchy when they had sharp disputes with their Kings as we have had for oppressing spoiling and destroying but alwayes we quieted ourselves with a present reformation of pressures and abuses and with a new confirmation of magna Charta which those Kings had no power and right to confirm and grant if according to these mens doctrine their power was determined ipso facto and returned to the People and they or the Parliament in a condition to reassume and exercise it If Subjects have no right and very rarely or never attempted to bar the next in succession when the right of the Crown descended unto him for any personal defect or crime of his or his Ancestors or upon any former judgment or sentence given in any Court against him before the right of succession fell unto him they have less colour of right to depose him after he is in possession for any crime then committed Turpius ejicitur quam non admittitur The old Doctors of law of great credit in their times and since could tell them that it did belong to the Pope as Christs Vicar to compel rebellious Subjects to the obedience of their Soveraign by spiritual censures and excommunications and that in the Pope was all the power to depose Princes yet so as he ought not to proceed to the deposing of them except in cases of the highest contumacy and for the greatest causes quae Rempub Christianam laederent seeing it could not be done but with a great and general Scandal and with the perturbation of the publick peace For by their opinion the Emperour who is elected could not although with his free consent resign unto the Electors but into the hand of the Pope in respect that a resignation is properly to be made unto him who is Superiour and hath right judicially to hear and determine the cause Innocent Baldus Archiadic ad C. admodum Extravag de renunciat Peregrin de jur Fisci lib. 1. tit 2. 3. L. 27. S. 2. L. 22. S. ult Mandati F. Sote de Just. jure lib. 4. quaest 4. art 1. Suarez de legib l. 3. c. 4. Glossa ad Clement tit de Beptismo Aquinas secund secund quaest 42. artic 2. Mariana de Regis institut lib. 1. c. 6 c. 9. and compel the parties to the obedience of his decree Renunciatio non tenet nisi facta sit penes eum qui renunciantem invitum causà cognitâ judicialitèr destituere potuisset neque sine licentia superioris officia seu beneficia accepta dimittere licet Qui mandatum suscepit deserere promissum officium non debet alioquin quanti mandatoris intersit damnabitur mandatum suscipere voluntatis susceptum consummare necessitatis sit But there are other later Doctors more bold who affirm that a King for Tyranny may be removed by the Common-wealth or compelled by the Popes spiritual power quando à Divinis legibus rebellavit Others say that he cannot be deprived of his power by the People from whom he hath his power nisi quando in Tyrannidem declinet ob quam causam possit bellum justum contra eum geri And they repute him to be a Tyrant qui in Repub. non jure principatur cùm Princeps tendat ad bonum commune Tyrannus ad proprium ergo Tyrannus non est Princeps ideò perturbatio ejus regiminis non habet rationem seditionis nisi forte quando sic inordinatè perturbatur Tyranni regimen ut multitudo Subjecta majus detrimentum patiatur ex perturbatione consequenti quam ex Tyranni regimine And when they have declared a King to be a tyrant potest in jus vocari â Republica unde habeat Regia potestas ortum suum rebus exigentibus si sanitatem respuat Principatu spoliari neque ita in Principem jura Potestatis transtulit Respublica ut non sibi majorem reservaverit potestatem * How can the Subjects have jurisdiction over the Soveraign Prince qui est fons omnis jurisdictionis à quo jurisdictiones per concessiones commissiones confirmationes fluent ac per appellationes querelas nullitates ad eum refluan Bald. Bracton noster Here our adversaries joyn with some Doctors of the Romish Church for they find this doctrine as necessary for them
great cause for a King to use his extraordinary power without the compass of positive lawes as there was for the Romans to constitute such an extraordinary and supream Magistrate For as the prerogative of the King ought to give place to the publick good and safety of the people so must the rights and liberties of the people when necessity requireth give place to the Kings supream authority Subditorum jus supereminenti Regis dominio subest Grot. de jure belli lib. 2. C 14. quatenus publica utilitas desiderat Nam ut aequitas simplicitèr cedit aequitati summae ita jus eedit juri supremo maxima aequitas est lex suprema dicunt Doctores quae maxime ad religionem nam summaratio est ut in lege dicitur quae pro Religione facit spectat ad publicam utilitatem ad hominum societatis vinculum conservandum Moreover those who would abolish the Kings prerogative would take away with it one most proper and necessary branch thereof which is his right of granting priviledges dispensations qualifications exemptions from the Rigour of positive lawes so as men shall expect no farther then the letter of the law granteth whatsoever their case or merits are whereas there is often as necessary use and as great justice in priviledges dispensations and exemptions as there is of and in the Lawes themselves and peradventure more For the most perfect positive Lawes cannot provide for all accidents The Roman Praetor had power Cicero L. 1. F. de Just jure as equity required aequitas justitiae maximè propria est ut juvet jus civile ut suppleat utque corrigat in private mens cases and so is it in Courts of equity And shall the Prince be restrained from the use of equity from helping supplying or correcting the Law when the publick good or the preventing of injury to private men requireth it and from dispensing with the rigour of penal laws L. 1 l. 9 l. penul Cod. de legibus Novel 82. cap. 10. L. 12. F. qui et â— quibus Cuiae alii ad dic l. 12. Faber adregul Juris whose right it is leges condere conditas interpretari duritiamque ipsarum mollire lenire temperare Judices non debent esse clementiores legibus In lege dicitur quod quidèm perquà m durum est sed ita lex scripta est and it was not in the power of the Judges to help it for such a strict and hard Law onely the Prince could mollifie when the words of the Law are so clear and precise that it cannot receive an interpretation ex bono aequo it were very absurd to take away all particular priviledges and exemptions from the general rigour of sundry Lawes and it were infinite to set down those good Laws founded upon reasons drawn from the Law of nature which nevertheless upon due consideration of circumstances are justly restrained from their general force without any violation to the reason the life and the soul of those Lawes as the Doctors say of the Civil and Canon Lawes So as there is a dispensation of Justice requisite in point of Justice as well as there is a dispensation of Grace whereby the bond of the Law is not released the force and obligation of the Law still remaining onely the reason of the Law which is the soul of the Law in some particular case ceasing the Law is justly interpreted in such case not to have place but to have the influence and vertue thereof limited or suspended according to the true meaning of it and the intention of the Law-maker lest injustice or absurdity follow I grant that there is often an abuse of the Law and of the equity and power given for interpretation mitigation and dispensing with Lawes under the countenance and colour of equity and justice plerumque sub authoritate juris perniciosè erratur L. 91. F. de verb. oblig ubi quaestio sit de bono aequo And there is an abuse of the Regal power and prerogative quid non dominantium cogitavit cupiditas ubi malè agitur necessitatis obtentu Plinius licita ex necessitate in argumenta trahuntur as saith the Law And all this is acted under the colour and pretence of reason of State which according to the Italian saying Ragion di Stato guasta tutto il Mondo Reason of State destroyeth the whole world These are commonly called Machiavillian counsels State-impostures stagitia dominationis as were those which Proculus Tacitus Titianus and Nero used when they could find neither Law nor reason to justifie their will ad jus imperii ad vim dominationis transibant And in later ages the exorbitant actions of Princes are justified by Sycophants by reason of State and by the virtue of their absolute power different from their legal and ordinary power Baldus Innocent Alciat ad l. 2. Cod. de in jus voeando alii De plenitudi ne potestatis Pontificis non oportet sermonem effundere quia superfluum est solem facibus adjuvare Extravag Gloss ad tit 1. Plinius ad Trajan Imp. Plenitudine potestatis Princeps ad malum utendo dicitur plenitudo tempestatis non potestatis nam clausula de Plenitudine potestatis inserta intelligitur de potestate justa non Tyrannica Inest enim plenitudo potestatis in dispositione bonitatis non pravitatis posse injustum facere potestas non dicitur sed infirmitas deficientia boni Plenitudo potestatis non extenditur ad iniquum neque exercenda est nisi praemissa clave discretionis quae regulanda est per jura ex bono aequo Sed in Jure nostro nulla est mentio plenitudinis potestatis Vt foelicitatis est quantum velis posse sic magnitudinis velle quantum possis But these corruptions and abuses are not sufficient causes for the abolishing the good and ancient institutions in Common-wealths or the proper and necessary rights of Monarchy unless we will imitate our late Reformers who rather have chosen to cut off from the body that which was necessary then endeavoured to cure any defects there and have destroyed the good corn wilfully when they onely pretended to pull up the weeds The Baâ—ance would be kept even between the Subjects right and the Kings prerogative if the Rule in the Roman Law were observed salva Majestate Imperii L. 11. F. de Justitia salvoque jure more majorum quia ut dicunt Juristae sicut pendet Justitia ratio Tributi Fectigalis in recognitionem Supremae potestatis ob onera sustinendae Reipub. ad praestandam securitatem mercibus ita Regalia Regibus competere ut statum Reipub desendant sive decus dignitas sive salus utriusque spectetur Kings have their proper and peculiar rights assigned by God who commanded Samuel to shew the people the manner of the King that shall raign over them rationem istam
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
aut minuit The Apostolical and Primitive practice rather then the late discipline and example of some reformed Churches who as much of necessity as of election are fallen for the most of them unto a form of Presbyterian discipline of which they find no use nor Character in the Primitive time And therefore they shew little candor and sincerity who so peremptorily defend this Presbyterian discipline and with detraction and detestation of Episcopal Government seeing it hath been fully proved by Learned men that the office and power of a Bishop made ever a great difference betwixt him and a Presbyter Neither can they conclude any thing for their advantage by the promiscuous use of those two names at the first at which they catch It cannot be called one and the self same order where the offices are distinct Diversi tituli praebent regulariter significationem diversi juris * Episcopetus est ordo distinctus in quantum est officium quâ—ddam ad sacras actiones Aquinas Episcopa tus juxta veriorem receptiorem sententiam Canonista um Theologorum ordo est quatenus ordo dicitur officium quoddam potestas respecâ—u qua rundam sacrarum actionum que sacerdoti non conveniunt Conarunias variarum resolut lib. 1. c. 10. Amongst Gods selected people there was the high Priest the chief Governour of the house of the Lord. Jer. 20.1 Numb 3 32. If the offices and things are distinct it availeth little the insisting upon words and names promiscuously used There is not one and the same imposition of hands and shall not it be a distinct order in it self from whence ordination and all other orders do and ever did proceed untill of late time Neither was the office and Power of a Bishop lessened by the assistance and counsel of certain Presbyters called Senatus Ecclesiae but rather strengthened and supported by that antient and laudable course There doth not appear in Scripture any commission given to any assembly of Presbyters by our Saviour to govern the Church without a Bishop or Superiour in whom was the power of Ordination and Imposition of hands although by the antient Canons Distinctio 24. c. 6. causa 15. quâ—st 7. Episcopus sine consilio Clericorum suorum Clericos non ordinet it a ut Civium conniventiam testimonium quaerat Neither is there any example in Scripture of any delegation of power of Censures or Government derived from the Apostles to any Colledge or Assembly of meer Presbyters If these men will peruse the Canons of the four first general Councils which Calvin saith Institut 4. c. 19 Et in lege Constantini Imperatoris sancimus vim legum obtinere Sanctas Ecclesiasticas regulas quae à Sanctis quâ—tuor primis Cenciliis exposi a sunt Novell 131. cap. 1. distinctio 15. c. 2. libenter amplectimur reveremur they shall find enough to justifie the office and superiority of Bishops and to give them satisfaction of the necessity of that Function if wilfull ignorance and the spirit of delusion and contention doth not still prevail They cannot shew that ever any Church upon the face of the earth hath ever been ordered by their discipline untill this later age or hath not ever been under Episcopal government since the Apostles time * Exceptis Haereticis Macedonianis qui pro certo tempore non habthant Episcopum sed sub solis Presbyteriis eâ—ant Sosomen Eccles hist lib. 8. c. 1. Neither can they by their doctrine and manners or by any other means induce those who are in no respect behind them in learning prudence and piety to believe that they and not others have had the clearer lights and more divine inspirations Saint Paul meeting with such men saith unto them 1 Cor. 14.36 Luk. 11.35 What came the word of God out from you or came it onely unto you Take heed that the light which is in thee be not darkness 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 AS they would have it granted that their Presbyterian Government is onely of Divine right so would they also have it granted that nothing is to be used in Church Government but that which hath direct and express warrant in Scripture and that all discipline and order in the Church ought to be reduced to the primary purity of the Church which is not possible in many things neither necessary or expedient in these corrupt times and latter age of the world An exact form for all Church government and discipline is not to be found expressed in the Scripture For one cause of so many general Councils in the first times and shortly after was to make Canons and Constitutions for the external Government of the Church which had not needed if such a perfect Platform had been delivered in the Scripture as these men do imagine We find of necessity Aliter in constitutà Ecclesià aliter in constituendà Some things are sit for the present which for the times past were not convenient according to the old saying Nunc aliud tempus alii pro tempore mores Cicero had just cause to be displeased with Cato who living in a corrupt State sought to have all things carried as though he had lived in Plato's Common wealth New lawes may be made but not new men neither the present manners of men altered or reduced to the old It was wisely said in the Imperial Law That the looking back too curiously into the times of old and seeking to reduce the present to that which was past erat confusionis potius quam legislationis Laws look not back they may well be made to look forward and for the future but they must of necessity be made fit for the present time which man cannot over-rule Aul. Gel. lib. 20. c. 1. Legum opportunitates medelas pro temporum moribus pro rerum publicarum generibus pro utilitate praesentium mutari atque flecti The ancient good discipline may well serve for our instruction which neither may nor can all serve for our imitation Respect is to be had unto the times of old and we are instructed by Gods word to ask of the dayes of old to remember the dayes past to ask for the old paths but not injoyned to follow them in all things Jerem. 6.16 and in all times We finde in the Scripture things of Apostolical institution changeable and not appointed for perpetuity Many offices and ministeries in the Church at first were soone changed as the electing of widows for some services the manner of instituting and ordering of Pastors and Elders not lay Elders and for the raising their maintenace which in the primitive times when the Church was in the Infancy and under Persecution before Tythes were established did rise from the free Benevolence of men who were of one
inconstant in the use and observation of them Julius Caesar said of Cato his mortal enemy that he shewed himself both a good man and a good Citizen by opposing the changes of the State and Government Salust mutationes in Republica caedes hostilia portendunt especially if the changes and alterations are driven on by violent and pertinacious Spirits who if they obtain their desire in having any antient Laws and customes changed their Countrey shall find the smart as did the Roman State Valerius Max. lib. 9. cap. 1. when the Senate yielded thereunto quia non providerunt ad quod tenderet pertinax studium eorum quò se usque effusura esset victrix legum audacia Livius lib. 1. tentari patientiam tentatam contemni ut si jugum acceperint obnoxios premat As some men ask unreasonable things but to draw others to yield unto that which is reasonable so others by granting unto some men more then reason doth require do imbolden them to press more unjust and insolent demands The alterations in the State and Government procured by those who have the supream authority if they are not discreetly handled and effected by degrees in an orderly course and carried still on with the ease and contentment of the people they will in short time be disquieted and either turne back into the old way like sheep driven or violently run head-long into some new Salust Jus quod invaluit quod viget quod inharet animis hominum non semel sed pedetentim tollendum esse quoniam Populus non facile dediscit aut deutitur quod insnevit And therefore those Innovators who try experiments upon a State and upon the peoples disaffection to the present government and thereupon lay the cheif foundation of their designs without some other stronger assurance have often failed and have found themselves and others with them utterly ruined through the suddain and violent ebbing and flowing of the Peoples passions and affections The fear of this caused the Roman State when they had expulsed their King Tarquin not to rest upon the Peoples present violent hatred of the Regal Government and their oath freely taken never to admit Monarchy but for the future security of their usurped Government the Senate gave the People the spoil of all the Kings goods and of theirs who adhered unto him ne quis expers sceleris esset saith Livie that there might not be any who had not a hand in that foul fact and thus to set farther all hope of reconciliation with their King yet unto this the Senate added as the most effectual means to assure the Peoples affection their continual carefor provision of corn victuals and all necessaries at cheap rates together with freeing the Commons from heavy taxes and burthens and laying them upon men of most wealth and ability and upon Commodities superstuous and least necessary For the State being not come unto full growth and maturity might by many accidents have been destroyed Livius had it not been fostered and trained up por tranquillam moderationem Imperii et per multa blandimenta Plebi por id tempus ab Senatu data by a gratious Goverment and by entertaning the Commons at that time with courtesies and favours By which smooth dealing and indulgence of the Senate and Nobles the City was afterwards kept in liking of their new Government notwithstanding the strong opposition of the Tarquines and their party so as the meanest as well as the highest who were most ingaged and interessed continued altogether in the hatred of Monarchical Government and in the love of the new The alterations in the Church and the government thereof how pernicious they are we find especially being wrought by faction violence and tumults Vim Patriae afferri as Cicero saith These cause great distractions in the minds of men raise daily cross and counterspirits occasion the Religion professed and established to be traduced and do open an entrance to Atheism and to the weakning of all those facred bonds which preserve all Laws and obligations in humane society For then oaths are not regarded by those men nor the consciences of any other men in their pressing these Alterations in the Church neither the conscience of their Soveraign nor his solemn oath at his Coronation which oath is a supporter and an Epitome of out Magna Charta the confirmation of all our liberties By which oath the King is obliged to save and keep inviolable all the rights and liberties of his People and also those of the Church This oath they inforce the King to break in as much as concerneth the Church and the rights thereof and leave the People to the challenge of their rights and liberties by and from the vertue of this broken oath In both Kingdoms of England and Scotland he took an oath Episc Winton Tontur Ton. de conservandà in statu suo illo colendi Dei formulà quae publicè recepta utriusque gentis legibus stabilita esset Their consciences some of them would seem much to regard this in which respect they pretend that they cannot admit the Common-Prayer Book neither those Ceremonies in the Church which are by Law established and yet most of them although they cannot swallow a ceremony they can devour that which is holy and account it no snare Prov. 20.25 even as easily as they can digest their wilful breach and violation of the oaths of Supremacy and Allegiance in ordine ad spiritualia for the advancement of the holy cause and the Kingdome of Christ But Calvin giveth them a rule for their consciences concerning Church Government and concurreth with Melanchthon men in great esteem when their Presbytery was in the infancy viz. aliquando aliquod onus aliquam servitutem tolerandam esse si non sit iniquitatis sed pressurae lest by being over indulgent to our weak and erroneous consciences we give an offence to others violate the Peace of the Church and shew our contempt of Authority and of that which hath been established with prudence and piety We ought well to consider what things are of Divine right and precept and what are properly positive and Ecclesiastical constitutions what things are of Divine Right according to the matter and substance and are of humane institution according to their forms prescribed All are of weight although not equally What ought to be perpetual in the Church and what is changeable by positive Laws What is Moral what is Ceremonial lest the defects of our judgement cause us to abound in our own sense and lead us into an erroneous or perplexed conscience Some things are of Divine institution and right yet do not alwayes belong unto faith Bish of Winchest Epist to P. Moulin they belong to the agenda or practise of the Church to the credenda or points of faith they may not properly be referred Somewhat may be wanting that is of Divine right at least in
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
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
likewise publick and notorious Robbers and Invaders L. 2. Cod. quendo liceat unicuique l 2. Cod. de desertorib Faber semest Cap. 2. de Privilegiis in Decret and such as run from their Colours and Captains in time of War cunctis adversus latrenes publicos desertoresque militiae jus exercendae publicae ultionis pro quiete communi indultum est ut non modo defendendi se sed ulciscendi causa propter publicam utilitatem Ecclisia violentos laicos coercendo non dicitur contra legem agere sed legi subsidium praestare The reason which doth justify this irregularity in proceeding against such malefactors is given by Cicero quia in tanta perturbatioue rerum temporibus potius parere quam moribus and the Law agreeth with it also quia latro manifestus vel seditio praerupta factioque cruenta moram non recipiant L. 6 9. F. de injusto rupto Testamento Those who are in rebellion against their Soveraigne are in another respect in a worse condition then all other delinquents for all their transactions and agreements made with their Prince during the time they are in armes are void and so it was declared to Henry the forth of France by men of great prudence and learning Thuanus and the like was said of the Hollanders some years before For what Peace and transaction is that Ayala de jure bel saith Cicero by which nothing is granted unto him with whom the Peace of transaction is made Transactio nullo dato vel accepto vel retento fieri nunquam possit L. 28. Cod. de Trans If the King and Common-wealth recover again their former estate after a rebellion although upon hard conditions yet the Kings condition and those in rebellion will prove afterwards very different and unequal for whatsoever they got by armes they lose in the time of Peace Thâ—â—n lib. 105 perit illis Regi accrescit ejusque potiorem eventu conditionem esse qui jure potior est as the Marshal Shomberge said unto Henry the forth of France when he perswaded him to make Peace with his Rebels almost upon any conditions quia Princeps ex hoste fit dominus and this causeth those in rebellion to be so unwilling to submit or trust unto any accord or assurance given them The old saying doth stick in their minds he who draweth his sword against his Soveraign must sling away the scabbard Although these agreements and transactions with those in rebellion are void but upon condition they first submit and return to their former obedience Livius qui pacem petunt inermes postulare de pace agere debent was the course holden by the Romans with those who were not their subjects Cicero Hostibus non aliter pacem concedebant Romani quam si armis positis eam petant sin autem pugnantes eam postulent victoriâ pax non pactione parienda est But this Roman magnanimity is lost in this latter age and Princes are necessitated oftentimes to wave much of their right and to treat otherwise with those in rebellion for the obtaining of Peace the most inestimable blessing upon a nation and so necessary that Cicero saith a most unequall and unjust Peace is to be preferred before the most just war Princes therefore ought rather to regard what they ought to do for the good of themselves and their People then what they deserve to suffer who offend and he seemeth to do most wisely who setteth revenge in the last place and taketh it in hand when all things are made sure French Invent. It was observed of Charles the seventh of France who had sharp war with the English and with his own subject almost at one time that his clemency and his endeavours to obtain Peace did not cause him to neglect just and necessary severity neither by immoderate and unseasonable revenge which is rather a wasting then correcting did he dissolve the bonds and cut off the hope of reconciliation and unity which would keep the wounds continually bleeding and festering and cause new maladies to increase and multiply Salvianus Multo felicius est laudabilius suis aliquando etiam immeritis ignoscere quam in suos meritò vindicari It is observed that Hannibal was cruell and Scipio his adversary was full of Clemency yet each of them accomplished their designes although they took a contrary course to each other Machiavil dis lib 3. c. 21. 22. But men easily slip often into a defect and danger by the use of cruelty or clemency if it be not corrected by an extraordinary vertue and conducted with exquisite prudence It is often observed that by treating with rebels Ayala de jure bel lib. 2. c. 7. quorum arrogantiam patientià módesâ—â—â vincere arbitramur ferociorès rèddamus priorem ferendo injuriam invitas novam Cupiditas istorum hominum aliquid tradendo iis non restringitur sedinflammatur quicquid concesseris initio ad ulteriùs penetrandum sit gradus Buchanan Scot. Hist I cannot let pass the error of those who are too quick in charging men with treason some out of indiscretion some out of a desire of revenge or to advance some designes by taking him away that is an obstacle some guided by the votes in Parliament will have all men guilty of treason as far forth as they themselves who are in rebellion for giving the King ill Counsel as they pretend or for executing their authority civil or military in an exorbitant and illegal course and so make these to be enemies of the Common-wealth destroyers of the fundamental Laws and liberties of the People and raisers of war against the King and the People Although such Counsellors and Ministers may be in part guilty of some of this and therefore deserve severe punishment yet not the punishment due for high treason and rebellion To take in all these crimes into the Crime of high treason would cause a boundless and indefinite definition and description of high treason and would appear contrary to the understanding of the Interpreters of the Laws and to the intention of all Law-givers and confound the wits of the best Logicians to make it probable This doctrine would often hinder the endeavours of the best and most able Counsellors and Ministers to the great prejudice of the Prince and State in making them timorous and ever uncertain what to advice or act And this were also to make him guilty of treason who resisteth by force and armes the execution of any judgment and decree of a Court of Justice which would be very absurd L. 5. F. de Crpit minut Non omnis resistentia armis facta adversus Judiciarii decreti executionâ—m neecum cives inter se tumultuantur sit tantum partium saclionum certamen dicitur crimen perduellionis laesae majestatis sedubi aliqui desiciunt ab his quorum sub Imperio sunt vel cum
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
unto that yoak and swear whatsoever is required of them and do not use all means possible to recover their liberty and the rights of their Countrey L. 19. Cod. de Postlim l. 20. F. de Captivis Qui hostilis irruptionis necessitate transductus est ad proprias terras festinare se debere cum hoc solùm requirendum est utrum cum hostibus voluntate fuerit an coactus si sua voluntate apud hostes mansit non est ei jus postliminii By this doctrine that Subjects under the yoak of any Tyrant and Usurper as well as of a foraign just enemy ought quietly to submit and take new oaths contrary to their allegeance our allegeance is a thing left at large and made ambulatory rebellion is cherished usurpers incouraged and men quieted from seeking which way soever the wheel turneth to shake of any usurped and tyrannical power by any means lawful or probable But those Lawyers are the greater deceivers who affirm that all the Lawes and Statutes which do mention the King and are made for his benefit and for the security of him and his Subjects as that Statute also made by Henry the seventh for the security of Subjects when two are in competition for the Crown ought to be interpreted for him whosoever hath gotten the supream power and that by his assuming the name of King which some of them absurdly held necessary men ought to submit although he had no more title then Jobn of Leiden And thus may one usurper if he can drive out another find the Laws as beneficial for him as his sword and make them serve for any usurper of a Crown as well as for any Competitor for a Crown how good soever his title be These pernicious Law-sophisters that excellent rule in Law doth controul Nulla juris ratio aut aequitatis benignitas patitur L. 25. F. de Legibus L. 6. Cod. de legib l. legâ—ta inutilia F. de adimendis legatis Reg. jur Canonici ut quae salubritèr proutilitate hominum introducuntur ea nos duriori interpretatione contra ipsorum commodum producamus ad severitatem nec inducta ad unum effectum debent contrariaoperari quod ob gratiam alicujus conceditur non est in ejus dispendium retorquendum nec jura singularia producenda sunt ad similia aut ad consequentiam licet jus commune trahitur ad consequentiam ex majoritate aut paritate rationis ut dicunt Interpretes juris These cannot blame Machiavil for saying that Princes may break their faith to preserve themselves from danger or damage seeing they teach Subjects to wave their allegeance and break their oaths for prosit and quietnesse Neither can they condemn those Jesuits for saying the Pope can absolve Subjects from their oath of allegeance if Subjects can finde cause and means to absolve themselves from that their duty oaths or when they take new oaths and ingagements help themselves by equivocation and mental reservation Such new oaths and ingagements do avail nothing unless it be to procure perjury and the more hatred on those who procured them to violate their conscience With whatsoever cautel or mental reservation we swear protest or ingage yet God taketh it as he which giveth the oath doth understand it and if he who sweareth meaneth deceitfully the interpretation cannot be made according to his fraudulent intention but according to his meaning who required it or else according to the proper and common acceptation and sence of the words especially being given by a Judge or Magistrate fallit jurantem juratio facta per artem a cautelous oath deceiveth none so much as he that taketh it deceitfully But when the words are ambiguous and may receive different significations as he may worthily be blamed for taking such oaths so he that doth tender it willingly ought not to receive any benefit thereby nomini dolus suus lucrosus sit aut esse debeat Paulus Juris-Consulius nec dolus suus cuiquam per occasionem juris prosit Pactionem obscuram ambiguam iis nocere in quorum potestate â—uit legem apertiùs conscribere L. 39. F. de Pacâ—is Cujac alit ad dict l. 39. Baldus interpretationem contra eum potius faciendam esse Omnis oratio obscura ambigua tendicula est quae ei qui tetendit potius fraudi esse debeat sed interrogationi obscurae vel ambigua quis respondere non tenetur nisi declaretur Juramentum tunc intelligendum est secundum communem significationem verborum si utrique sint in dolo si à neutro intervenit dolus tunc interpretandum est secundum intellectum utriusque si verba possunt utrique intellectui adaptari si ab altero tantum sit dolus tunc intelligendum est secundum eum qui rectè intelligit In contractibus stipulationibus contra venditorem stipulantem interpretandum est * They who make an Oath Ingagement or a Law obscure or ambiguous and not clear and perspicuous which are essential properties of an Oath or Law it is presumed quòd sub involucro verborum per occasionem obscuritatis tendunt laqueos deceptionis But in two contrary or incompatible Oathes taken by one man if the former were not unlawful but of things indifferent in themselves neither good nor evil the second Oath contrary to the former is invalid and can hardly escape the taint of perjury but if the first Oath was for the performance of a necessary and Moral duty required by Divine and Humane lawes the second Oath being contrary to the former although extorted by fear is clearly void and most commonly impious When we are obliged to the performance of a duty or act we as much as in us lyeth are obliged to withstand and remove all impediments which may probably hinder us in the performance thereof for in a stipulation or promise not to hinder an act is regularly implyed an endeavour to have it performed In illa stipulatione L. 50. F. de verb. ob per te non fieri non hec significatur nihil te facturum quo minus facere possis sed curaturum ut facere possis qui spondet dolum malum abesse abfuturúmve esse non simplex abnutivum spondet L. 83. De verb. oblig L. 21. F. deregul Jur. L. 4. F. Quae in fraud sed curaturum se ut dolus malus absit Qui non facit quod facere debet videtur facere adversus ad quod tenetur quia non facit In a promise and contract the nature and quality thereof quid actum erat inter partes quid necessariò subintelligitur although express words are wanting must chiefly be taken into consideration The Divines say that in the sixth Commandment Thou shalt not kill is contained our duty in preserving the life of our neighbour as far as our wit and power extendeth quia imperantur contraria officia dum mala
fieri vetantur Therefore where we are restrained by our Oath of Allegeance either from the hindrance of any good to our Soveraign or from doing any act or conniving at any mans act to the prejudice of his Person Crown and dignity it is necessarily implyed that we are thereby injoyned to use our utmost endeavour for the preservation and advancement of both his Person and Dignity In the Vassals Oath of sidelity to his Lord amongst other these words are non sufficit abstinere à malo L. 2. tit 6 7. de Feudis nisi fiat quod bonum est ne aliter censeatur perfidus perjurus CHAP. XII Of those who onely accept of Offices and Imployments under Tyrants and usurpers THere is another sort of these men with whom we incounter and we may joyn them to the former although they are not so subtil yet do they help to support the cause either wilfully or through indiscretion or want of courage or conscience men not passive but of actual compliance accessaries they are although searce guilty of their greater impieties nor of the beginning of the Rebellion yet they being instruments in several services and imployments serve for the strengthning of the arm of the wicked and so do they communicate in the iniquity have fellowship in their works of darkness These are they who accept of Offices and places ministerial and of Judicature and of Magistracy under the masters of the mischief and do act by and under their authority These under the pretence of doing good to the People in their several callings and offices joyn in deluding the People under a shew or shadow of Justice and liberty libertatem quùm restitui videretur interceptam esse Livius Tecitus L. 28. God ad leg Jul de adul Augustin simulachra libertatis seu vestigia morientis libertatis vel praestigiae versuti juris non vera jnstitia viva moribus sed picta coloribus By these means they endeavour to effect the settlement and continuation of the iniquity and Tyranny in seeking to content the People with specious representations and fictions of Justice and equity like that which theeves are constrained to use among themselves for preservation of their society and this is to worke in the People an affection or quiet submission to the usurped Government and to draw away their affections and cogitations from their Lawful Soveraigne unto the upholding of that Government built upon such soundation that under it Peace neither from God nor man can ever be expected neither the admittance of men into any places of trust or honour who are true lovers of the rights and liberties of their Country or eminent for vertue or magnanimity Salust Boni quam mali suspectiores semperquâ— talibus hominibus aliena virtus formidolosa est Those men who are imployed under such Goverment find nothing but confusion they being made instruments only to delude the People Tacitus quia nimo unquam Imperium slagitio quaesitum bonis artibus exercuit Both the Masters and the Ministers walk on in darkness Psalm 82. for all the foundations of the earth are out of course If the foundations Religion and Justice be destroyed what can the righteous do Psalm 11. Paterculus How can that State ever subsist ubi Justitia aequiâ—as industria redditae non sint ubi vis legibus judiciis gravitas magistratibus authoritas senatui Majestas restitutae non sint And although they often pretend reformation in matters of Religion and justice and make some attempts it is but ad faciendum populum and although they have really such intention of reformation yet God having raised such men as a scourge of his vengeance upon a Nation it is not to be expected that he will imploy or blefs them in such good works at leastwise untill these men repent and his wrath be taken away These men who are thus assisting Plutarch in Cato may consider of the counsel that Cato gave to his son not to deal in publick affairs when Caesar had usurped in respect that upright dealing the corruptions of the time and in the State would not endure it and in time-pleasing he could not be an honest man Of these men complying and assisting the Emperour saith in his law Novel Leonis 70. nisi istorum manus in subsidium praestò fuissent certè nonita promptè slagitium perpetrassent qui majorem operam rei perpetrandae adhibuerunt These men are not unlike those who afford aid and receptacle unto thieves L. 1. F. de recapâ—at L. 50. l. 54 F. de Furtis qui in pari causa habendi sunt for they are as useful and necessary as receivers and concealers Qui opem fert qui ministerium at que adjutorium praebet si sciens accommodaverit furti tenetur licet nullum ejus consilium principaliter ad furtum faciendum intervenerit Non sunt à culpâ liberi nec à poena debent esse immunes qui licet fuerunt illius machinationis ignari tamen iis quos sicarios esse sciebant in sarcinis custodiendis ministerium praebuerunt * Decretal de homicidiis c. 6. Crimen non dissimile est rapere ei qui rapuit raptam remservare l. 9. Cod. de vi publica Sinum praebere furenti perinde habetur atque si manisesti furâ—i condemnatus esset l. Sacrilegiis ult F. de Peculat crim S. Paul did acknowledge his consent to the death of S. Stephen by his standing by and keeping the raiment of those who murthered that blessed Martyr Moreover some of those who were guilty of the beginning of the rebellion are not guilty of so much evill as some who come since in as accessaries after the fact who now do that which the first men did abhor and those also who only act in the offices of trust and deal not in the State affairs cannot escape the falling within the compass of abetting upholding and continuing the rebellion by administring Justice and helping those to the benefit of the Laws who continue willful in their rebellion and therefore ought to have protection and benefit from no Law as enemies to their King and Country Frustra implorat Ecclesiae aut Legis auxilium qui committit in Legem vel Ecclesiam Cicero said of Cethegus and Lentulus Livius lib. 3. Legem Semproniam quae de Civibus Romanis constituta est ad eos qui essent Reipub. hostes non pertinere The Roman Senate when the people of Rome were quietly fallen under the Tyranny of the Decemviri and rested so with contentment the Senate rather desired an addition of more injuries then to ease them of any burthens that so having in detestation their present thraldom into which their own errour had led them they might fall to a longing desire of the former Government under Consuls and wish the old world were come again 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 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
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
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
violence brake into Regal government domination and power prevailed some People postquam Regum pertaesum erat after they were weary of Kings as the Cretensians Spartans Athenians governed themselves by their own laws and not by Kings some itching humour peradventure took them in the head or they took Aristocratical and Democratical government as a medicine to cure Tyranny and that did but change the malady for those States were never free from seditions or from many Tyrants Reigning at one time which was worse then the Tyranny of one man as they felt it at Rome Fremebant Populi multiplicatam servitutem esse centum pro uno dominos factos esse Livius lib. 1. Judges 9.2 Which is better said Abimelech to have threescore and ten men to have dominion ever you or but one man only Into this miserable condition were the Israelites fallen when in place of one King they had not only many but also one Micah a private man for all their Judges set up a new Religion and an Idol and disorder upon disorder followed and the reason is given in sundry Chapters because there was no King in Israel * The miserable condition of the People is declared by the want of a King and of the exercise of the true Religion Hoses 3. Jud. 18.1 Jud. 17. August Confes lib. 3. cap. 18. l. 1. l. 2. F. de Historia juris This desire of changing Monarchy did possess but few People generale quippè pactum est humanae societatis obedire Regibus Reges initio omnem potestatem habuisse arbitria Regum pro legibus erant After the Assyrians and Persians the Grecians and Romans had the universal Monarchy what power their Subjects had or did ever pretend to have concerning domination and government doth not appear in any Histories neither did any of the ancient Law-givers and wise men Philosophers or others ever mention any such natural primitive and supream power to have been originally and still to remain habitually in the People over Kings There is no doubt but Nebuchadnezzar and his Successors raigned tyrannically and yet the Prophet said that God gave them power and dominion over men God never gave neither any others did ever pretend to have right to depose any of them for their Tyranny as being any forfeiture of their authority They would have it granted unto them that Kings have not their authority immediately from God because they are either by hereditary succession or by election gift contract or by conquest all which are but humane titles and meant of acquisition not divine But they ought to find a difference between the power which is immediatly from God and the means used for obtaining this power which are humane Aliud res est aliud modus rem habendi the means and the form must be distinguissied from the authority of governing forma de hominibus esse potest de coelo semper autoritas and thus say the Doctors of Law Principes legitimi sunt aut Successione aut Electione vel donatione vel jure belli bos titulos ab hominibus accipiunt Titulus seu conditio sive modus ab hominibus accipitur potestas autoritas est immediatè à Deo Sic Pontisicts Electio sit ab hominibus sed personae canonicè electae Deus dat Pontificalem potestatem quam à Deo immediatè accipit By which of these humane means Princes are advanced to rule or by what form the Common-wealth is governed or in whom the Soveraign power is vested if they are lawfully advanced to their callings and estates we must acknowledge them for Gods leiutenents on earth and the power they have to be his and his ordinance and who ever resisteth this power resisteth the ordinance of God Those affirme that the power of rule and government is derived from the People unto Princes Soto de just jure lib. 1.9.1 artic 3. Suarez de legib lib. 3. c. 3. 4. alii and that Reges à Populo creati sunt in quos suum transtulit Imperium ac potestatem quòd potestas dominandi seu regendi politicè homines sit ex vi solius juris naturae in hominum communitate potestatem hanc à Repub. ad Principem manasse Yet they acknowledge that this Power is not immutably setled and remaining in the People Suarez alii sed per consensum ipsiusmet communitatis vel per aliam justam viam posse illa privari in alium transferri ut per justum bellum quod verum titulum dominium conferat So as by the opinion of those who are in part of our adversaries side they cannot justify their allegation that this Power and right of domination and rule is alwayes inherent in the People and in the whole State of human societies conjoyned although they had it originally in them so as they may assume it again without having the influence of this their supposed original power barred by any means as our adversaries affirm For we find amongst most Nations that they have received laws and their liberties from the grant and permission of the Conqueror and not he and his successors their Power and authority from the vanquished people Neither is there any authority or right which any People have or ever have had in matters of State and government but it may and oftentimes hath been limited and abolished not only by positive laws and continued customes but by their own concession and grant as the Romans granted all their supream authority to their Kings lege Regia Institut de jur nat gent. tit F. de bist jur l. 1. l. 2. or else they may be deprived of it by the right of Conquest especially proceeding from a just cause and lawful title whereby the Conqueror maketh all his own which his sword toucheth if the vanquished continue unseasonably obstinate and do not help themselves by timely surrender or composition Deutr. 20.12 God who giveth victory in the day of battle doth thereby give domination and dominion over the vanquished and all that is theirs in a just and lawful war Lex velut pactum commune est quod bello capta capientium siunt Aristot Xenopbon Clem. Alexand. l. 5. F. de acquir rer dom quae ex hostibus capiuntur jure gentium statim capientium fiunt So that unto whom dominion is in this sort derived the same do they enjoy by the law of Nations as rightly as they who acquire their dominion by the free grant of the People * The Conqueror had by the law of Nations and by the Roman law dominion over the conquered and might bring them under servitude yet amongst Christians the practise and custome is otherwise for a citie taken by conquest saith Bartol Bald. non efficitur serva sed subdita respectu jurisdictionis unde cives retinent bona sua habent Testamenti factionem But when a City is conquered or rather
rescued and redeemed out of the hands of Tyrants talem urbem recipi non capi receptam legibus antiquis libertate stabiliri Livius lib. 26. CHAP. XV. Of Prescription as well upon Land as Sea And the Right and Jurisdiction that the King hath in the Sea and over the Sea MOreover a People as well as a Prince may lose and be barred of many of their rights although not of their just liberty by custome and prescription which is at this day in many things the most usual law between the Prince and the People as it is also an ancient and common title between Princes and nations L. 28. F. de verb. signif L. 32. F. de legibus Qui non utende rem amittit vel rem patitur usu capi alienari videtur Per non usum desuetudinem leges abrogari tacito consensu omnium nil interest suffragio Populus voluntatem suam declaret an rebus ipsis factis Sed aliud est non usus aliud usus contrarius qui majorem vim habet quam simplex desuetudo seu non usus Prescription doth as the sea take from one shoar and give to the other straighten the ancient bounds on the one side and inlarge the bounds of the other It hath as we find by experience a strong operation upon land and sea Rex habet de jure gentium privilegia propria quae de jure gentium debent esse communia as in having a right in the sea and over the sea in respect of his jurisdiction and protection Bracton Bodin Capolla alii by an ancient and continued usage L 1 F. de aqua l. 1. Cod. de servitutib L. 56. lib. de Feudis Vetustatem vim legis tenere longi temporis consuctudinem vicem servient is obtinere as to lay taxes and impositions on sishers and on navigators in certain cases Reditus seu Gabella piseationis vel ex his quae in portum velex portu vehuntur sunt inter Regalia And also shipwracks and other escheats and perquisites reputed in this age inter summa Regalia whereby much of the liberty due unto men by the law of nature and also by the ancient laws of the Romans is much restrained through the force of custome and prescription or assumed Regalities and priviledges Regal wrought and effected by the changes in times and in the manners of men * Antiquitàs non hoc jus in maria flumina venationes sibi accipiebant finitimi principes ut nunc verum propter impenses sollicitudines principum crescentes merite inter Regalia reducuntur qua ab initio erant communia Tholosanus de Repub lib. 9. c. 1. num 29. Mare litora maris sunt ad usum communem jure nature gentium proprietas maris est nullius licet protectio jurisdictio Imperium sit penes Reges l. 3. F. ne quid in loce pub piscationis reditus Gabella vectigalie consueta moderate sunt inter Regalia quasi Coronae debita ut laborum praemia Regibus Regnisque tuendis servientia ut dicunt Interpretes ad titulum quae sunt Regalia in lib. Feudelium Imperiorum jura ut Aristides ait hujusmodi sunt ut ea non ex damnoprivatorum sed expublica utilitate Imperii vi necessitate mesiamur All which peradventure may better still be tolerated then endeavoured to be infringed or altered in respect of those inconveniences which are likely to ensue Unto those we may add the use of granting Letters of Mart consuetudo clarigationis seu jus dandi Represalias as they call it which in it self considered is no better then legitimum latrocinium or as the permission to keep Concubines by the Roman Law termed legitima intemperantia for it is against natural equity and the Rules of Law that one should be punished for another that the Father or Son should be punished the one for the other or that a Subject should be delivered a hostage for his Prince against his will yet all this must be tolerated as a calamity or punishment falling on some men etsi sine culpa non sine causa and although it be against natural equity yet as the Doctors say non omne quod est contra naturalem aequitatem idem injustum sit favor publici Status facit aequa non aequa quia omne utile publieo id ctiam sit aequum They are much deceived who affirm that these maritime Regalities jurisdictions and customes because they find the ancient Roman Law against some of them are risen up of later time and would have a boundless and indefinite liberty in the Sea We find that whatsoever the ancient Roman law was yet the Roman practise was otherwise as was the practise of other nations for Kings and Common-wealths did in former Ages challenge and exercise such maritime Regalities although not all which are now in use Gothof alii ad L 14. F. de adquir rer dom Non est novum ut Populus aliquis classe potens in mare imperium exerceat ut olim Rhodii teste Strabone occupationis temporis immemorialis fulcro licet non ratione praescriptionis propriè dictae sed jure praeoccupationis seu ratione quasi possessionis Rhodericus Suarius de usu maris alii ac etiam quasi praescriptionis non ut modus acquirendi dominii maris consideratae sed ut exceptio robur addit sic alii dicunt quòd tempore immemoriali quod vim tituli privilegii habet ac inveterata consuetudine Veneti jus dominium in mari Adriatico quaesierunt Nautica omnia lege Rhodià deciduntur L. 9. Gothof de lege Rhodia Livius lib. 30. non jure Romano sunt enim legum Nauticarum omnium Rhodiae vetustissimae The Carthaginians said unto the Romans vos terrà marique videamus regentes Imperia non maris quicquam nostri juris est Argivi expostularunt cum Athenis quia suo mari Spartanos Argivorum hostes transire sivissent Thucydides lib. 7. Plutarch in Pomp. ut contra foedus The Romans gave a large commission unto Pompey against Pirates with absolute authority over all the sea-coasts although there were many potent Princes within that compasse who had jurisdiction or dominion upon their own coasts by law or ancient custome Baldus Glossa Mare dicitur in termino districto territorio illius loci cui magis appropinquat inter dictum competere ne quid in mari sive litore fiat quo statio itérve fiat deterius Maris communem usum esse omnibus L. 1. S. 17. F. de Flumin L. 3. l. 4 F. ne quid in loco pub tamen concedendum id non esse à Populo Romano qui imperium habet quo deterior litoris marisve usus futurus sit The Civil law as well as the laws and customs of other nations do vary and detract from the law of
nature L. 6. F. de Just ju Guiac ad tit F. de just jure sed quod detrahit non mutat non in totum recedit jus civile à naturali nec per omnia ei servit nam in eo in quo recedunt à jure naturali rationem habent saepè cum natura conjunctam ac plerumque publicae utilitatis quam naturae jus suadet anteponi privatae But now to reduce men to their primitive liberty and abridge Princes of these Regalities howsoever they were at first gotten were as Baldus saith revangare mundum to turn the world topsidown eripere clavem de manu Herculis and to raise a universal combustion Mores ubique jus gentium subegerunt Cujacius Plautus Plinius L. 1. F. de just ju Cujacius leges optimas aliquando in potestatem suam perducunt Imo vis Imperium quod primò erat nunc mores vocarentur Et jus gentium à naturali jure recedit quia non naturâ sed moribus nititur pleraque jura gentium naturali juri opposita sunt cùm ad necessitates utilitates temporum accommodata sint The manners of men and their customes are subject to change and vicissitude they have their ortum statum occasum but prescription is permanent Prescription and custome have the force of law and have wrought more changes amongst Princes and private men then positive laws could effect Tacitum Populi consensum proplacito judicio Populi haberi L. 32. F. de legibus Inveterata consuetudo pro lege haberi Cicero saith much of the Roman law more constat institut de jure gent. Diutini mores consensu utentium comprobati legem imitantur Much of our common law of England is customary law France est regie par custumes non par droit escrit fo rs en quelques Provinces par loix Romanes prins pour coustume Tillet Duck de usu juris Civilis alii Consuetudines esse jus commune in Gallia vel maxima ejus pars But all customes are not binding but such as are justè inductae legitimè praescriptae qui habent malam fidem tempore possessionis inchoatae continuatae nullo temporis tractu praescribunt vel in actionibus personalibus vel realibus dicunt Canonistae but the Civilians hold it sufficient if it be begun bond fide although not continued to the tearm required for compleating thereof * Bona fides non sufficit sed necessa rio requiritur Titulus etiam qui pessessori tribuat causam prascribendi ubi jus commune contrarium ei fit vel praesumtio probabilis adversus eum sit nisi tanti temporis allegetur praescriptio cujus contrarii memoria non existit Decretal de Praescrip cap 1 Habet velut longae possessionis praerogativam ex eo quod diu usus sit L. S. F. De Itinere This I pass over as also what is required for the interruption of the course of prescription and custome Prescription and custome can raise a good title between Kings and nations as well as amongst others for ex Regum Populorum longa patientia sic ex praesumpta derelictione cum immemoriali temporis possessione dominia transferri by the laws of nations as the Doctors affirm quia per usum temporis immemorialis ïnducitur praesumptio juris de jure habet vim pacti privilegii legis Although some are of opinion that it was brought in by the Roman laws but long before those laws it was in use for Jephthah did object to the King of the Ammonites Judges 11. the possession of three hundred years and Sulpitius the like against King Antiochus and so others Si jure civili excludantur actiones privatae civiles ligitima praescriptione Livius lib. 35. quid non etiam belli causae actiones armatae cum sit absurdum ut nec post secula desit armorum controversiarum bellicarum praetextus justus Gentilis Grot de jure belli The Roman Emperours have been justly barred in many cases from their Claime by Prescription It is the common opinion that Princes and other States have justly prescribed and thereby acquired their supream Power against the Roman Emperors in respect of the presumed tacite consent of the Emperors never making claim nor giving them any interruption for a very long time By the law the longest time given to the Church was but the prescription of one hundred years that time being elapsed the claim and rights of the Church ceased and were reputed obsolete Centum annorum curriculo hujusmodi actionem evanescere L. 23. Cod. de Sac. Eccl. Novel 9. Romana Ecclesia gaudente centum annorum spacio vel privilegio Centum annorum lapsu exceptionem Ecclesits opponi sancimus Id vero quod est de centum annis mutatum est in quadraginta pro tollendis Ecclesiasticis actionibus Novel 131. c. 6. Thuanus lib. 101. Molinaus alii Episcopi Galliae se semper tutati sint adversus hujusmodi conatus Curiae Papalis praescriptione jurium libertatum Gallican The Roman Emperors as we perceive have lost very much of their dominions and Empire through dereliction and negligence which other Princes States and Cities have gained or usurped and now to seek the recovery thereof would cause their endeavours to appear as unreasonable and fruitless as formerly their diligence or power was defective L. 1. F. de usucap Bono publico usucapio vel praescriptio introducta est ut aliquis esset finis litium ne semper dominia incerta essent for it is against reason as well as against Peace which the laws do more favour then any mens particular loss especially through their own carelesness that no bounds should be set to mens sutes and claimes but controversies remain immortal CHAP. XVI Against the pretended Power of the people to Elect their prince or to depose him Of the Norman conquest of England and of Leagues between Princes and of Aides given to Subjects in Rebellion against their Soveraign AFter our adversaries have made their allegations with some verbal flourishes as that there is a natural right in all Societies to the power of Rule and from the Societies and Communities of People it is derived to one or more Persons and although Supream and universal Power be acknowledged to be in Kings yet not so as to exclude the whole State of those Societies conjoyned and bar the influence of that power which they have originally over Kings Then for the proof of this they do offer one reason which is that every independent People if they have or can find any such being driven from their Countrey by any accidents and scattered upon the face of the earth being forsaken by those who had the rule and power over them if they unite again they have a natural right unto Supream authority and may constitute such form of Government as pleaseth
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
to justify rebellion and to depress the authority of Kings as those Romish Doctors do to uphold the Popes Spiritual power which is as they say ex institutione speciali pendente à divina voluntate Instituentis Suarez de legib alii secund secundae quaest 10. artic 10. quaest 12. artic 2. quae ab inferioribus mutari non potest But the Regal power they will not have to be ex institutione divina sed à natura ita data à natura ejus autore ut possit in ea mutatio fieri pro ut communi bono magis fuerit expediens quia haec potestas ex vi solius juris naturae est in hominum communitate and although both powers may be said to be of God yet the Popes Spiritual power is of God immediatly but the regal Power mediante naturae lege Aquinas saith that Infidel and Apostate Princes although they have yet cannot retain dominion over the faithful but being excommunicated for Apostacy their Subjects are freed ipso facto from their allegeance Although he doth acknowledge that Infidelity considered in it selfe doth not abolish the right of dominion which Infidel Princes have over the faithful because it is ex jure gentium proveniente ex naturali ratione Jus autem divinum quod est ex gratia non tollit jus humanum quod est ex naturali ratione and yet notwithstanding the Church hath power to deprive them of this right as cause shall appear Thus do they labour to obscure and suppress the truth and perplex themselves and others with those improbable distinctions and pernicious propositions not regarding how they have been confuted and that by setting forth these propositions they raise Principles of sedition and rebellion and leave Kings in the worst condition of all men by subjecting them to the amplitude of the power and to the exorbitancy of the wills of their two Masters the Pope and the People to punish Tyranny and Apostacy and to witness accuse define and judge thereof * In Rege Ethnico vera potestas est jure gentium idque fine ordine ad potestatem Ecclesiasticam Dominia ut in fide non fundantur sic in fidelitate non evertuntur Privabit Censure Pontificis societate fidelium quà fideles suni bonum illud Spirituale ab Ecclesia non privabit obedientia subditorum quà subditi sunt bonum hoc civile est nec ab Ecclesia Tortura Torâ—â— Episcop Cicestriens To set a colour upon rebellion they affirme that the People do but so transfer their power as they still retain the habitual power in themselves This King James in his Declaration to all Christian Monarchs calleth the Principle of sedition and unto this may be added another of a more ancient date but of the same mould That allegeance is due to the Politick capacity of the King and not to his natural Person Upon this assertion was grounded the damnable opinion and practises of the Spencers in Edward the Seconds time and very probable it is that this opinion made the way more smooth and easy for deposing that King by the infection it infused and the influence it had upon that Parliament Although not long before Rotula Parlamenti those Spencers were amongst other treasons charged with publishing in writing That homage and allegeance was by reason of the Crown and not of the person of the King which they said did appear in that no allegeance was belonging to his Person before the Crown descended and so they would infer that the People had power to depose the King The many absurdities in this wild argument the laying it open doth both discover and carry with it the confutation if there had not been enough said against it before From these false Principles may arguments be as well drawn for violation of mens faith and duties enjoyned by divine and humane laws and for the weakning of the authority of all Magistracy and power although it be given by themselves and intended to be exercised for their behoof The Politick capacity of the King which never dyeth never ceaseth is inseparably annexed unto his natural person untill his death and both are conjoyned at the very instant that the right of the Crown descendeth unto him which giveth a new qualification to his natural person and life and vertue to his Office and function His natural person est organicum instrumentum Baldus alii cum Legistis Anglicanis personae ejus intellectualis publicae seu politicae The power office dignity considered simply in it self cum exclusione subjecti cui naturaliter inhaeret non est nisi abstractum quiddam remoto concreto This Politick capacity considered in it self is but as the dead letter of the Law without the conjunction of the natural person which giveth it life and vigor In respect both of his natural person and Politick capacity the King is termed in Law Lex loquens Lex animata and his authority and office indesinens Consulatus Allegeance is therefore due unto his natural person to which his politick capacity is as it were appropriated and incorporated both of them give and receive vertue to and from each other His natural Person Coke case Post-nati his Politick capacity his Crown and dignity in our law-books and Acts of Parliament are taken for one and the same often Nihil ne minimum quidem inter Regem Regiamque potestatem esse Thuanus lib. 105. nec Regiam dignitatem separatum quiddam extra administrationem Regni dici aut singi posse There is no difference between the King and his Kingly Power and office by an indissoluble bond are conjoyned his natural person and his politick capacity his person and his power his person and Majesty his person and Crown These all are naturally conjoyned by Gods ordinance and by the Institution of Monarchy and a curse is laid on them who separate those whom God hath joyned The King our Head and the life of the Law by the virtue and influence of his Regal power he onely giveth and preserveth the benefit of Lawes at home and Leagues abroad made by him with Loraign Nations And yet we see to the admiration of men that our Rebellion in England of the largest extent that ever was by an example not the like to be found hath claimed and obtained the benefit and advantage of all leagues formerly made by their Soveraign with other Princes and States who were in no age so apt to comply with Rebels for their profit and advantage without regard of their honour neither the incouragement they give to others of rebellious spirits or of the evil example which hath and may justly come home unto themselves Foraign Princes as they are not Judges so ought they not to make themselves parties in those odious quarrels between Princes and their Subjects They ought to be peace-makers which is one of the most glorious titles that can be given
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
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
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