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
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
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
quantó que majore libertatis imagine tegebantur tanto eruptura ad infenfius servitium Tacitus This amongst many other ill effects taketh off the affections of the people and fillech them with jealousies and causeth them not to give credit and assistance unto him when they ought The other Pest or Canker proceedeth from Parliaments as when they suffer the power and dignity of the Parliament to be abused and perverted by a predominant faction which swayeth all and cut out all their work in relation to their own designs and the authority of Parliament serveth las do journey-men to make it up and acceptable to the people This is as bad if not worse then the contrivance of Lewis the eleventh of France used also since by his successors who finding how tedious Parliaments were in their most important affairs requiring most expedition Paul Aemilius Thuanus Bodin de Repub Ordines pro tâ quam exercent in Comitiis libertate facile dissensuros fuisse in quo majestatem suam Populis tentandam aut etiam contemnendam expesuisset Rex eorum animos tanto magis irritasset quanto ils invitis peregisset Strada Bentivoglio de bel Belgico how apt to fall into impertinent diversions into faction and turbulent licentiousness under colour of using their just liberties and promoting the publick good these Kings procured the power and office of the three Estates to be transferred to certain select delegates taken out of their own body and so saved the trouble of the General Assembly and took away almost all use of Parliaments and with it the best means the people had to acquaint their King with their grievances and obtain redress and to preserve their just rights and liberties And although Parliaments are called for just causes and do sit in full liberty and freedome yet doth it often happen as in some General Councils called for the extirpation of Heresies and Schismes and the preservation of the Church and the peace thereof that they being not at peace among themselves before they came neither bringing with them the love of truth and minds inclinable to peace and moderation the former evils for reformation whereof they were called were not taken away but strengthened and augmented and diverse others raised for those men are most unfit for counsel who have their minds wholly possessed with perturbations and jealousies or their cogitations bent unto faction or any smister designs These bring nothing with them but the spirit of contradiction partial and interessed opinions secret designs and open animosities And then it falleth out as Tacitus saith quae apud concordes vincula charitatis incitamenta irarum apud infensos crant Non sic Romani antiqui qui privatas res suas pro Republica contempscrunt consuluerum Patriae consilio libero August de Civit Dei lib. 5. c. 15. Imperator Constantinus scripsit ad Synodum Tyri ut conceptas rixes delerent quia secum discordantes non liceret ad divinum cultum adesse nec munera sua offerre altari priusquam ad mutuam pacem redterint â—t lege divina docemur Euseb in vita Constant neque delicto neque libidini obnoxii CHAP. VI. The Right that Bishops have to sit in Parliament TO take a more particular view of those things which destroy the state and essence of Parliaments we will observe in our passage some particular men of great estimation abounding with pernicious hypocrisie covering their designs under the cloak of counterfeit sanctity and having their iniquity supported and armed with Authority Vbi Dei numen praetenditur sceleribus Livius Augustin Livius lib. 24. ubi nequitiae suae patrocinium de Scriptura sacra requiritur ubi liberator Patriae insidiator ipse libertatis habetur tyrannos ulciscendo quae odissent scelera ipsi imitantur Buchan Scot. hist. lib. 13. ubi Parricidas publicos qui Regem suum occidissent ipsos omnis Divini humani juris violatores pro vindicibus decoris publicise ipsos venditare liberatorum Patriae nomen usurpare Such mens hypocrisie saith Saint Austin quia illa quae mendaciter agunt sic agunt ut populus eos veraciter agere existimaret is most pernicious and damnable When fraud or force have their influence over Parliaments the stability of all matters there enacted is undermined for such acts prove but the seeds of future evils and immortal discord In all well-governed Common-wealths there hath ever been especial care that the Councils Parliaments and Courts of Justice should be free from all force and coercion Lib. 2. tit 27. de Feudis By the Imperial Law ad palatium vel ad forum nullus miles ferat arma So by the Law of the Lumbards armatum in curia Domini jus non est ingredi ut sine rixa sine suspicione procedant judicia The Interpreters of the Roman Law say that arms ought not to be born in the palace neither in the confines nor near the gates thereof and so the Parliament of Paris gave judgment agreeing with Cicero judicia nulla sunt Cassan catal Glor. mundi dominante vi vis maximè juri adversa est And long before did the Roman Law punish by banishment as guilty of the Law Julia de vi publica him who came armed unto their Tribunals and places of judicature or through an evil intention did disturb and hinder the peaceable proceedings of Judges and those in authority qui dolo malo fecerit L. 10. F. de vi pub quo minùs tutò judicia exerceantur aut Judices ut oportet judicent vel quominùs is qui potestatem habet jus decernat imperet faciat Amongst others of the like kinde we finde in the tenth year of Edward the third two Proclamations Cook Institut 4. that none should wear armour or weapons in time of Farliament When Sylla brought his army to Rome and caused himselse to be made Dictator by a Law although made for fear yet with all usuall formalities Cicero declared that Law to be no Law but such effects ensued that the Roman Senate never recovered their former lustre or liberty Thuan. lib. 23. The Court of Parliament of Paris gave a severe sentence against some of the reformed religion their name being crime enough and yet the sentence was reversed Caus 11. quaest 3. cap. 89. cum Glossâ ut per vim vitiose lata in respect the Judges were over-awed Sententia per metum lata nulla est ipso jure When the Protestant Princes and Cities of Germany were summoned to the Councel of Trent some of them made their Protestation and appeal ad Concilium Generale pium legitimum and divers learned men declared that the Canons of that Councel could not binde Thuan. alii quia Concilium illud fuit nullum vitio indicts â— habitum terminatum It may well be granted that force offered to a Parliament may make void all their
and common concernment and interest but when they are assembled in due form and solemnity We perceive by the judgement of wise and learned men and by experience in all times how precious is the presence and prejudicial the absence of Judges Counselors or Parties interessed Plutarch in Cato The Romans were so strict in the case of a private man condemned to dye by one voyce more then there was for his acquittal that the sentence was suspended because of absence of one of the Judges Sometimes by one man all are brought from an error By the Counsel of one man a puissant army hath been deseated Polibius One Ephesius prevailed with the Romans in Councel assembled to send into Greece to get their Laws whereupon the Romans did ground and forme their excellent Laws of the twelve Tables Fons omnis juris publici privatique Livius Act. 5. Onely Gamaliel prevailed with the Jews in their Counsel and staid thei furious proceedings against the Apostles The Councel of Nice concurred in their Judgment with Paphnutius Sosomen The Emperour Frederick the second kept divers Cardinals in prison and the Pope dying during their imprisonment the other Cardinals would not proceed to the Election of a new Pope neither could they by law as they affirmed untill their fellows were released Platina alii and those who were under restraint made their protestation against any election during the time of their imprisonment so as the See of Rome was void twenty moneths When the Roman Senate discontinued their antient custome of having a full number alwayes present opportunity was given and taken for the setting in hand a most pernicious abuse and practise as Asconius observed ut per panculos â—aciâ—bant Senatus-consulta ii omnes suae factienis à quibus quod libitum erat facilè impetrabant when none were present but those of their own faction they did what they list and the others who were absent betrayed their Countrey in neglecting their duty Livius lib. 39. Quid aequi pâ—ssit expectari ubi per infrequentiam â—urtim Senatus-consulta facta sunt In the multitude of Counsellors there is safety saith Solomon Thus the Roman Decemviri * Valerius Flaccus being made Inter-rex in a vacancy the Consuls being absent preferred a law that Sylla should be perpetual Dictator and do what he list Cice. Appian Livius lib. 3. when they had setled their authority they changed their former moderate course and had daily secret meetings like our close Committees apart inclosed from others At home they determined how matters should pass and in open place they pronounced the sentence accordingly The common opinion was that they had conspired not onely for the present time to do wrong but were confederated and bound it by an oath to hold the possession of the Decemvirship for ever CHAP. VII The necessity of having all the Members present in Parliament or the greater number of them and the danger of Confederations Associations Ingagements and other indirect practises contrary to the Rights of the King and the liberty of the Subject AS the absence of any of the Members make all their Acts void or voidable when their absence is caused by fraud force and tumults so are the Acts of all that are present void and their rights and priviledges cease when they who sit and act change the Parliament into an unlawful Assembly and by covert and indirect practises conventicles associations contrived in close Committees endeavour to circumvent the King or to enforce him and to abuse the people and the trust reposed in them All Associations Conventicles and confederations without warranty from the Supream Authority are by all Lawes Divine and Humane void as being the most effectual means to disturb the peace to introduce innovations in the State and to weaken all bonds of loyalty and obedience Qui faciunt ligam vel societatem ad eorum defensionem Bart. ad tit qui srent Rebelles Bald. ad tit quib modit feudum amit cap. 1. ut Florentini Perusini alii hoc exprimunt sed aliud in veritate agunt Istudest signum proditisnis proximè post hoc cadebant ab Imperio Romano pro liberis se tenchant But those Associations are the worst which being in themselves unlawful have the countenance and support of Parliamentary authority ut unde jura nascuntur injuriarum nascatur occasio when that which should have been for our wellfare becometh a snare when the Leaders of the People cause them to erre and they that are led by them are destroyed like the authority of the Roman Tribunes of the People which the People did adore But Appius Claudius said unto them Livius lib. 5. ye give a favourable ear to all your Tribunes although they ruine the Common-wealth and ye being thus carried away by the sweetness of that authority suffer under it to lurk any mischief whatsoever This power and the exercise thereof by the Tribunes was the cause of frequent seditions Quae authoritas specie quidem tuende Plebis Blorus lib. 3. cap. 13. cujus in auxilium instituta erat re autem dominationem sibi adquirens studium favorem Populi legibus agrariis frumemariis judiciariis aucupabatur in quibus omnibus incrat species aquitatis sed haecipsa in perniciem reotham misera respublica in exitium suum merees erat It was one of the cheisest articles against Peiree Gavistion of treason in Edward the seconds time that he assumed Regal power in makeing alliance and confederation with the People and tooke an oath from them to live and dye with them These associations and consederations draw unlawfull assemblies and fedition and therefore by the Roman Law he was guilty of treason L. 1. F. ad leg Jal Ma. L. 3. F. de vi pub lica Lib. 2. de Feudis tit 53. cujus conatu catus conventusque sum hominésve ad seditionem convocentur vel qui turbae vel seditionis consilium inierunt And therefore as in the Law Conventicula omnesque conventiones inter Personam Personam inter Civitatem Civitatem omnibus modis sieri prohibemus praeteritas factas cassamus And also those who suffered Conventicles in their houses were punished L. 15. Cod. de Epise Cler. L. 8.8.5 Cod. de Haereticis Novel 132. and their houses confiscate Publicatur domus in quo siunt Conventicula illicita domum vel possessionem ejus in quâ convenerunt sanctae assignari Ecclesiae by an other Law Clerici monachi conjurantes vel conspirantes aut factiones componentes aliquas deponuntur omninò cadunt de proprio gradu Caus 11. c. 21. By the golden Bull of the Empire all unlicenced confederations made between the Princes Cities and states of Germany subjects much more at large then others are strictly prohibited for associations and confederations are proper onely to the supream Powers are inter jura summa Imperii unio
entrance they presently enter into a breach of two principall Pillars and rights of Empire ever accounted inter jura summi Imperii the one is the Usurpation of the power of raising Money upon the people the other is the Arming and drawing together of Soldiers For the first the law porvideth ut vectigalia nova Tit. Cod. nova vectig lib. 10. F de Publicanis Deciss Rotae Rom. L. ult F. de vi pub nullo decreto Civitatum institui possint nec ultra antequam consuetudinem inconsulto principe nec sufficit quod agatur de communi utilitate seu necessitate civium nisi ob damnum inevitabile evitandum Qui nova vectigalia exercent tenemur lege Julia de vi publica quia vis Reipublicae datur Force is thereby offered to the Common-wealth as much as by raising and arming of Soldiers Tit. Cod. ut arm usus Lib. 17. Cod. de re milit the other apparent usurpation of Regal Authority Nulli prorsus nobis inconsultis quorumlibet armorum movendorum copia tribuatur This is a universal Law at this day in all Kingdomes and Common-wealths and before this Law the ancient Law of the Romans made him guilty of high treason L. 1. L. 2 F. ad leg Juâ—iam Majest qui injussu Reipublicae bellum gesserit delectúmve militarem habuerit exercitum comparaverit vel quò homines armati cum telis in urbe sint and with this agreeth the common saying nemo tractet ferrum nisi qui sceptrum the sword and the sceptre go together Ordo naturalis mortalium paci accommodatus hoc poscit Augustinus ut suscipiendi belli authoritas atque consilium penès Principem sit Our Laws and statutes concurre herein and especially in prohibiting the arming of men without the Kings authority and of this one proofe amongst many may serve for all In the seventh year of Edward the first the Parliament did fully acknowledg that in them was no power to deale in matters of armes the words of the Statute are that in all Parliaments men shall come without force and armour well and peaceably to the honour of us and of the Peace of us and our Realm and that all the Prelates Earles Barons and Communalty assembled have said that to us it belongeth and our part it is by our Royal Segniory strictly to defend wearing of armour and all other force against our Peace at all times when it pleaseth us and to punish those which do the contrary according to our Laws and usages of our Realm The Subjects are bound to go with the King to the wars at home and abroad Cook Postnaâ—â— and this sheweth natural allegiance not to be local as doth appear by the Common Law and by divers Statutes declarative of the Common Law Cook upon Littleton It is the Kings peculiar right to call all his Subjects to armes especially all those who hold by knights service and to carry them with him when he maketh a voyage Royal or send a sufficient man in their place or pay Escuage And therefore there can be found no Law or reason to justifie the imaginary right of the People or Parliament in the Militia Salutem Reip. tueri nulli magis convenire quam Caesari Deoff Praefectivigil F. Salust nec alium ei rei sufficere quà m Caesarem qui cohortes militares opportunis locis constituit eam esse conditionem Imperandi ut non aliter ratio constet quam si uni reddatur As there are somethings which a King cannot get from his subjects but being either wrested from them or imposed upon them do destroy the essential pars of natural and just liberty and doth render them rather slaves then free-men so are there also some essential rights of the Crown which the Subjects cannot obtaine from their Soveraign by any grant or prescription without destroying the essential and individual rights of Monarchie A King cannot grant by his Charter neither lose by prescription as all the Interpreters of the Laws agree those rights called the flowers of his Crown which are Regalia suprema summa jura Imperii regno tuendo servientia inherent to his Royal Function and Politick Capacity and serve for the strength and support thereof And so by the Canon Law Licet generalis sit tibi concessa legatio Decretal de officio Legati cap. 4. ad ea tamen sine speciali mandato non debuisti manus extendere quae in signum privilegii singularis sunt tantum summo pontifici reservata Illa jura non sunt in commercio quae propriè sunt Dominii Diadematis Domanii Regii quae sunt de bonis juribus reservatis in signum subjectionis recognitio supremi universalis Imperii seu potestatis for by such grant or release would ensue as the Lawyers say deformationem demembrationem turbationem publici Status imperii And such are the rights of making war and Peace of having the last appeale unto him or to his great Councel and supream Court and of making leagues and of dispensing with penal Laws granting pardons and such like For the exercise of his just rights and the administration of his Regal office is committed unto him by God without any permission to suffer the destruction of them or any of them Themistocles declared to the Athenians and Cato to the Romans that man could not usurpe or prescribe unto any thing which was due unto the divine Majesty neither could private men do the like unto the Common-wealth L. 34. F. de contrah empt L 6. de contrah emp. F. L 9. l. 45. de usu cap. L. 7. tit 37. 38. Cod. The alienation of those things are by the Law forbidden quae natura jus gentium vel mores civitatis commercio exuerunt ut sunt sacra religiosa aut quorum commercium non sit praescriptio longae possessionis non concedi in rebus sanctis sacris vel publicis Populi Romani nec in rebus Fiscalibus vel Dominicis quae sunt propriae principis In the treaty between the King of Spains Commissioners and the Hollanders in the year 1607 it was often urged and not gainsaid for ought appeareth that the supream rights of Majesty and Empire could not be gotten from the King of Spain by any grant or transaction between him and his Subjects Relationes Baudii Meursti neither lost by any prescription or lapse of time And yet may a King passe by his grant and lose by prescription some things of profit and of his revenue and other inferiour rights and Regalities according to the Laws and customes of several Kingdoms And in some cases prescription doth ly in all Kingdoms against the King or else controversies would remain immortal So likewise grants alienations and contracts made by the King for just causes and in legal form are and ought to continue valid lest many inconveniences and much injustice should follow and the
King be in the worst condition of all men sit quasi exul qui est omnium praesul Baldus He is tyed by the Laws of nations and nature to observe just contracts which as the Doctors say he cannot make void and revoke de plenitudine potestatis suae The Lawyers affirm that vectigalia alia emolumenta ex jurisdictione provenientia alienari possunt in parte praescribi possunt firma manente jurisdictionis suae suprema exercitatione apud se et successores suos Baldus ita ut sit sine diminutione authoritatis supremae derogatione directi dominii Principis * No Act of Parliament can bind the King from any prerogative which is sole and inseparable to his Person And although some of these Regalities seem to be reserved yet are they grantable and subject to prescription as creare Tabelliones monetas cudere exactiones vectigalium aliquorum and some others quae cùm sint inter minora Regalia corporis summique Imperii Patrimonii Regii integritatem non imminuunt In his praescriptio valeat contra fiscum * Peregrinus de jure fisci alii Chopin de doman Reg. Codex Fab. Sex tinus de Regalibus Tributa alia publica functio seu collatio nullam temporis praescriptionem admittunt Cod. l. 6. de Praescript 30. vel 40. annorum Et generaliter res Fisci non usucapi l. 2 Cod. communia de usucapi Institut de usucap l. 18. F. de usucap temen sunt aliqui casus ubi praescriptio locum tenet contra Fiscum per leges constitutiones Imperiales l. 4. l. 6. de Praescript 30. 40. annorum Cod. l. ult C. de Fundis Rei privatae l ult C. de Fundis Patrimon caus 16. quast 3. c. 16. de Tributis aliisque prensitationibus publicis nullo temporis spacio praedia redduntur immunia non sic de alio jure publico principali seu Fiscali Feudali Cujac consultatio 54. Census tributa domnium Principis res sunt inalienabiles imperscriptibiles quarum vindicatio nulla temporis praescriptione submoveatur His ancient and just tributes and customes and his right of imposing moderate gabells and taxes are not alienable neither within the reach of prescription as likewise the domaines of the Crown called the Royal Dowry for when these are taken away he doth lose his peculiar and proper livelihood and the ordinary means to support his estate and the Common-wealth receiveth much detriment when the King hath not wherewith to live of his own but the people must be continually burthened with exorbitant and illegal Taxes and courses used for raising of money the most usual causes of discord between the King and the People often producing Insurrections and Rebellion and sometimes made use of by factious and discontented persons to justifie or colour their designs against their Soveraign The Emperour Vitellius unto some men released his Tributes Tacitus to others he granted over-large immunities without care of posterity he mangled and maimed his Empire The Common sort accepted these favours the fools bought them with money which wise men accounted void as being such as could neither be given nor taken with the safety of the State CHAP. IX Of the Act of Parliament wherein the King was to pass away his power in the Militia And that other Act which was made for the continuation of the Parliament until both Houses should agree for the dissolving thereof Of fraud or force used towards the King or any other men for the obtaining of any Charters Patens or Grants BUt we cannot finde any grants of Vitellius or of other Roman Emperours or Princes subject to more just exception either in respect of the matter and things granted or the means used for the obtaining of them or the end and purpose for which they were obtained then that act of Parliament whereby the King was to pass away his power of the Militia and raising of moneys upon the People for maintenance of forces by land and sea at the will of the Parliament the ready way to out himself of all power of War and Peace of arming or disarming his own Subjects or any others upon what cause soever contrary to the rights and safety of Monarchies and to the Laws and Statutes of England as hath been before declared But this was as the Psalmist saith to strengthen themselves in their wickedness and to worke their iniquity by a Law The King might as well have granted them jurisdiction over any City or County of his Kingdome independent as unto himselfe and exempt from his authority and the Laws of the Realm and without appeal to his supream Court and he might as well have passed away his peculiar right of pardoning offences and despensing with penal Statutes The Doctors of the Civil and Canon Law say that a King in what grant soever cannot abdicare à se superioritatem suam jus illud supremum Baldus Alexand Angelus alii quod semper praesumitur reservatum nec concedere censetur totum hoc privativè quoad se successores suos ita ut non possit alteri jurisdictionem dare aut potestatem quin ei remanet major jurisdictio potestas quam fuerat translata neque tamen quocunque modo Regalium concessio fiat Sixtinus de Regalib lib. 1. cap. 5. ipsius Imperatoris aut alterius Regis superior potestas ea concessione comprehensa censetur sed potius major quam est concessa illis reservata retenta sit neque potest à supremo Principe licet velit ita concessio fieri ut superior potestas in alium transferatur The fairest and the most specious pretences and the strongest and most legal tyes and formalities make that which is evil in it selfe the most pernicious and abominable damnabilis est malitia quam titulus bonitatis accusat Salvianus this Statute therefore being such and so qualified and so destuctive to that power wherewith Kings are intrusted by God and invested by the fundamental Laws of their Kingdomes and serving most properly to raise and continue discord between the King and his Subjects cannot but appear to all men to be as absurd as pernicious And like this was that other act and of the same leaven and mould with that act of the MILITIA which was made for the continuation of the Parliament until both Houses should agree for the dissolving of it But they did not stay for that agreement for the Parliament was dissolved against their will by the irruption of the soldiers And yet before that they did dissolve it themselves although besides their intention when they deserted the King and his authority and acted contrary to their writ of summons and to the rights of both King and People But more apparently when they suppressed the House of Peers and ran away most part of them together with their speaker unto the protection of the Army and so became the
and ordinances especially in derogation of the ancient Laws and customes Irritae sunt ordinationes benesiciorum collationes Ecclesiasticarum rerum alienationes ab Octaviano Guidone Haeresiarchis factas illus vero qui juramentum sponte de teneudo Schismate praestiterunt à sacris crdinibus dignitatibus manere suspensos decernimus * Tit. de schismat c 1. Decretal hrita suntomnis facta à tali haereticâ— qualit erat Novatianus neminisuccedent à seipso incipiens à seipso ordinatus Cathe dram sibi constituens P â—imatum assument Divus Cyprianus Epist 6. lib. 1. The Canons and decrees made during that great Schisme in the Church when there were three Popes at one time immediatly before the election of Martin the fifth were made void by the Councel of Constance nisi ad fidem benos mores pertinerem but some other acts and decrees of those three Popes Competitors were allowed and ratified for preservation of the Peace of the Church quod jure hactenus ambiguo fraudi cuiquam esse non conveniret Our acts of Parliament in the first of Edward the fourth declared all mens private acts saved c. excepting those who claimed by grants and patents of Henry the fourth Henry the fifth and Henry the sixth And the like voidance declared of those grants and patents of things belonging to the Crown made by Richard the third called Kings in fact and not in right So also all letters patents made by the pretended Queen Jane were declared void in the first of Queen Mary Platina Paul Aeonilius but the obligations contracts and convayances between private persons although dated under her name and usurped hile were allowed We have a late president in France in the time of Henry the fourth Thuanus to the same effect When those of the league made war against him and usurping his Regal authority made many grants patents and alienations to the prejudice of his crown and dignity they were declared void but not the judgments given in Courts of Justice for particular mens interest neither the acts and assurances passed between private persons although they were made by and under that usurped authority name and stile Quae sunt publici juris Corone separatam habent à jure privato causam rationem Ba-tolus alâ—i Bald. Gay lu in â—bierv Imperial Cunb Cuiacius Quae tempore Tyrannidis innovata sum penitùs amiquata cassata recisa sunt And many Constitutiors Imperâ—â— are extant of Justinian declaring to be void such acts as passed under the power or Tyrants and Barbarâ—ans as those gifts and alienations under the Tyrant Totilonus But without any declaration if a City be destroyed by a Tyrant it is said by the Doctors of Law to continue in being by intendment of law juris intellâ—ctu si restauretur jura privilegia quae durabant in habitu ad actum ipso jure reducuntur As a Captive taken in war when he is redeemed and returned home he shall be in the same estate and condition as he was before his captivity jure Postliminii in omnem cansam suam residet veniet in qua futurus esset si captus non fuisset L. 6. F. de captivis A Tyrant and usurper doth preserve the rights of the just owners as it is affirmed by the Lawyers L. 12. F. quemad servitutes by his being in possession and use of them from the prescription of others quia retinetur jus alterius per male fidei possessorem * Bartolus Decretal de Prascript c. 1. c. 14. l. 16. Cod. de sac Ec. cles Novel Valent. de trigint ann praescript Nec Asris nec Hispanis imputatur temtus quo Vandali cerum praedia possiderunt Procop. de bello Vand. Cuiac pâ—atis de Praescript 30. vel 40. annotum Tempore hostilitatis non currit praescriptio c. 10. Decretal de Praescript Nec ubi Poganorum vel increduhrum furor in causa est causa 16. quaest 3. c. 13. 14. Sie si Episcopus fuerit Haeretirus non currit Ecclesiae prescriptie quia tunc Ecclesia quasi 〈◊〉 unellignur Glessa ad Decretal cap. 1. De prascript A neighbour City cannot prelcribe against another City during the time it is held under captivity and Tyranny In time of Tyranny in the Common-wealth or of Schism in the Church prescription doth not run against any man Tempore schismatis non currit praescriptio tempus Tyrannidis est tempus schismatis quia scindit communionem Non currere praescriptionem quamdiu Ecclesia crat viduata vel ubi praeerat Episcopus Donatista vel quo tempore hostes its locis incubucrunt quibus Ecclesiae constitutae sunt si non suerit his querum interest â—o tempore interrum pendae praescriptionis bona copia And so in time of a great War and Invasion or of a raging Pestilence prejudice doth not accrew through lapse of time during these times of Gods wrath non valenti agere non currit praescriptio Neither in such times the omission of diverse legal Solemnities and formalities injoyned by positive Lawes for performance of sundry acts shall cause prejudice unto men For all Lawes as well as promises and obligations have this exception either expressed or implied de vi majori sen de vi divina cui resisti non potest If this be the proper and immediate cause which did hinder the performance of the act or office it is a just impediment otherwise impedimentum non excusat nisi tale sit Decis Rot. Rom. quod removeri minimè potuit quod causa fuit immediata propter quam minimè praestitum fuerit quod praestare debebat Moreover Cicero saith that those laws and publick acts of State which passed under the tyrannical proscriptions and cruel combustions raised by Sylla as likewise those acts done after when Julius Caesar usurped were all void in law Yet Quintilian saith that Cicero was of opinion that some acts and ordinances made by Sylla ought to be observed quia ita illis Legibus statum Reipublicae contineri ut his dissolutis Respublica ipsa stare non potuit For the endeavour to recover those goods which Sylla did confiscate and were passed from man to man made a disturbance of the peace of the Common-wealth for such was the Course of the time that those goods and lands thus taken by him Probus de bello civili adversus Lepidum quamvis malè capta jure tamen saith Florus eorum repetitionem non esse licet malè capta quia expedit Reipub. sedatae compositae ut vuluera rescindantur Such were the Corruptions in that broken State by their seditions and Civil war that what did pass for law was not just Fst justum aliqued legale seu legitinum quod non sit justum naturale seureale licet nullum sit aequum quod non sit bonum benè tamen rep ritur benum
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
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
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
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